What should the courts do about confusing statutes?

That was the question yesterday before the Supreme Court, which was looking at the Armed Career Criminal Statute. From the Washington Post:

Johnson was subject to an enhanced sentence because he had previous convictions. But he said that one of them — mere possession of a sawed-off shotgun — should not qualify as violent.

The Supreme Court originally took the case to decide that question. But months after the first argument, apparently unable to agree about the proper disposition of the case, the justices scheduled a new hearing on whether the clause was unconstitutionally vague.

As might be expected, Scalia led the questioning of whether the law could be saved. “Can we just patch up this statute in ways that have nothing to do with its text?” he asked Deputy Solicitor General Michael R. Dreeben, representing the government. He suggested that was a job for Congress.

Scalia said he did not believe it was enough that everyone agreed that some convictions would qualify.

“I suppose you could have a statute that criminalized annoying conduct, right?” Scalia asked. “And according to the government, that would not be unconstitutional, because there’s some stuff that is clearly annoying, right?”

Dreeben said the concern should be less because the burden is on the government.

If a court is not satisfied that a crime fits within the category, “the government loses,” Dreeben said. “The tie goes to the defendant.”

So my question to our district and circuit judges is why aren't more statutes found unconstitutionally vague? It is almost unheard of for the lower courts to do so, leaving it to the Supreme Court to step in. But so few cases get to the Supreme Court that the law is rarely tested. If more district and circuit judges were willing to say what we all know -- that many of these statutes make no sense and criminalize all sorts of benign conduct, the Supreme Court would examine more cases and the law would progress.

Go Dore Go!

Tiffany Foster gambled and lost a lengthy trial before Judge Altonaga.  She was taken into custody after the verdict was read and by all accounts was facing a substantial jail sentence.  But Dore Louis didn't give up -- and he won his post-trial motion for judgment of acquittal based on his defense of withdrawal.  From the Miami Herald:

A woman branded by prosecutors as the “matriarch of patient brokers” for a Hollywood hospital that fleeced about $40 million from Medicare has been freed by a federal judge in a rare ruling that spares her from spending potentially the rest of her life in prison.

U.S. District Judge Cecilia Altonaga threw out a Miami jury’s guilty verdicts against Tiffany Foster, 49, saying the trial evidence showed that she had “withdrawn” from the scheme to bilk Medicare more than five years before prosecutors filed an indictment against her and others in May 2014.

As a result, Foster should not have been charged because the statute of limitation for that period had already run out. Altonaga concluded that Foster “cannot be punished for the offenses for which she was convicted.”

The clock was ticking for Foster, who faced up to 25 years in prison at her sentencing on April 30.

Foster’s defense lawyers said they were “elated” with the judge’s answer to their post-verdict bid for acquittal — almost always a long shot.

“It is an important decision not only for Tiffany, but for anybody who has made mistakes in the past and long since moved beyond them,” said Miami attorney Marshall Dore Louis, who worked on the defense with Hilary Metz.

Good stuff. A shout out to Dore, but also to Judge Altonaga for having the courage to throw the case out.

Meantime, Paula McMahon is covering the Swap Shop trial in Broward. It's really entertaining and you should check out this entire article. Here's a snippet:

Jurors in the civil suit that pits luxury brand Louis Vuitton against the owners of the Swap Shop flea market in a fight over designer fakes got their first chance Friday to hear from the multimillionaire couple.

And the testimony from Preston and Betty Henn was a doozy.

"Ask me a sensible question," Preston Henn, 84, fired off.

"It's none of your business." "Don't want to." "Don't ask me dumb questions." "I. DON'T. KNOW."

Though lawyers had warned the jury that Henn is "petulant" and "quirky," jurors laughed out loud at times when they saw him in action.

The couple testified about condoms, crayons and cash. They discussed their strong work ethic and how they run their business. But above all else, both Henns — who sat in the courtroom but testified via pre-recorded video footage — made it crystal clear they don't have much patience for other people's questions.

Louis Vuitton's lawsuit accuses the Henns of contributing to the violation of the ritzy designer's trademarks by allowing vendors to sell fake Louis Vuittons at the market on Sunrise Boulevard in Lauderhill. If the Henns are found liable, they could face civil penalties of $1,000 to $2 million per proven trademark violation.

Louis Vuitton argues the Henns knew what was going on right under their noses because they both work at the market seven days a week.

The defense says the couple has taken reasonable steps to try to shut down the sale of counterfeits but that even Louis Vuitton, a multi-billion-dollar operation, has been unable to stem the tide of fakes.

The Henns are millionaires many times over and travel from their Hillsboro Mile home to their Aspen, Colo., retreat in a private jet they bought for about $18 million.

But they don't put on airs.

Preston Henn wears faded blue jeans to court most days and refills his Hard Rock Casino commuter mug from containers he carries to court in a variety of bags — an insulated vinyl shopping tote, a canvas book bag and, one day, one of the family's genuine Louis Vuitton leather handbags.

Betty Henn, 80, told the jury she and her husband resolve their disputes "by screaming at each other." But he gets the final say because, "He's a man."

At the market, they call her "Miss Betty" and vendors know they're playing with fire if they tick her off.

But when the lawyers asked what her job title was, she deadpanned: "Slave."

Jurors laughed. Preston Henn chuckled and patted her arm lovingly.

Thursday news and notes

1.  Would you pick the Chief Justice for jury duty?  These lawyers passed in a state civil case:

Rubin eventually asked people to raise their hands if they were involved in certain professions or were close to people involved in those professions. When the topic turned to medicine, Roberts spoke up.
“Juror 49,” he began. “My sister is a nurse.”
Rubin asked for a few more details and got them – she lived in Indiana, with a specialty of cardiology. Then Rubin asked the highest ranking member of his profession a question he obviously knew by rote: “Would that in any way make it difficult or impossible for you to be fair and impartial?”
“Nope,” the chief justice said.
Rubin moved on to whether panelists knew people involved in the accident investigation field.
Several prospects answered, including Roberts, who told Rubin about his brother-in-law. Rubin again asked if that would keep him from being fair and impartial.
“No sir,” Roberts said.
The judge – Rubin – moved on to questions about whether anyone had been in a bad accident. A man in the back said he’d totaled his dad’s Volvo as a teenager. Rubin asked if he was OK, heard that he was, and started an exchange that had Roberts and his other juror candidates laughing.
“Did you work it out with him?” Rubin asked.
“I had to work at a Cheesecake Factory for a couple of summers,” Juror No. 54 said.
Minutes later, Rubin asked No. 49 to step to the bench, asking the lawyers in the case to join them for a quiet conversation out of the presence of the other prospective jurors. It seemed clear what Rubin was doing: He was about to ask the panelists if they had any experience as a lawyer or close connections to lawyers, and Rubin wanted to save Roberts from having to answer in the detailed affirmative in front of everyone else.
“Sir, good morning. How are you?” Rubin asked No 49.
“Very good, thank you,” No. 49 said.
“I’ve discussed this with counsel. Obviously we know what you do for a living, sir.”
The huddle quickly concluded, and Roberts was allowed to remain silent during the lawyers question.
That Roberts wasn’t selected could have had as much to do with his juror number as anything.
After taking into consideration which jurors attorneys wanted stricken, Rubin went in numerical order. The panelists selected – six for the trial, with two alternates -- started at No. 2 and ended at No. 14.
The high court resumes oral arguments Monday.

2.  Would you try Ruth Bader Ginger ice-cream?

3.  What's the dillio with Judge Fuller.  Senators want to know.

Britto sues Apple

Over this ad:

Below is the complaint, which fell before Kathy Williams. According to the lawsuit, Britto's specific Trade Dress is "strong, fanciful, non-functional, and inherently distinctive," composed of vibrant color combinations, the juxtaposition of different patterns, bold black outlines, and "uplifting, bright and happy visual themes." Should be a fun one to watch.

Britto v. Craig & Karl and Apple

"I want to reiterate to all department personnel…that they are prohibited from soliciting, procuring, or accepting commercial sex."

That was a friendly reminder from Attorney General Eric Holder to DOJ employees not to hire prostitutes even if it's legal in that country:

As an excuse for his actions, one DEA agent told investigators that prostitution is “considered a part of the local culture” — Holder dismissed this line of reasoning outright in his letter.
“Regardless of whether prostitution is legal or tolerated in a particular jurisdiction,” he wrote, “soliciting prostitutes creates a greater demand for human trafficking victims and a consequent increase in…commercial sex slavery.”

Friday news and notes

1.  Justice Sotomayor had dinner with the Clooneys, per Page Six.

2.  AP: The FBI is getting a $200 million building in Miramar.  But we can't get a new state courthouse.

3.  This lawsuit says: Keep the Kardashians out of Florida!

4.  New proposed sentencing guidelines for fraud. Up up and away!

An Unusual Decision Not to Publish - by Guest Blogger Brian Toth

An Unusual Decision Not to Publish - by Brian Toth

 

Earlier this year, Justice Thomas, joined by Justice Scalia, dissented from the court’s decision not to review a ruling by the Fourth Circuit reviving a habeas petitioner’s claim that he was sentenced too harshly by a vindictive judge. The dissent in Plumley v. Austin was notable mostly for its sharp criticism of the Fourth Circuit’s choice to label its decision “unpublished”—that is, without precedential effect. The Fourth Circuit’s decision was 40 pages long, rendered after oral argument, contained a dissent, and, in Justice Thomas’s view, satisfied three criteria for publishing decisions. “It is hard to imagine,” Justice Thomas wrote, “a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.”

Yesterday, the Eleventh Circuit issued a decision in United States v. Rivero affirming a 30-year sentence for a 56-year-old defendant who pleaded guilty to possession with an intent to distribute cocaine and marijuana. Because Mr. Rivero qualified as a career offender, his advisory-guidelines range was 188 to 235 months. The government recommended that Mr. Rivero be sentenced toward to bottom of that range, but the district court, citing his lengthy criminal history, sentenced him to 360 months in prison—the statutory maximum. The Eleventh Circuit’s decision was rendered after oral argument and over a forceful dissent by the panel’s only active judge, Judge Martin, who addressed not just Mr. Rivero’s case but also the court’s precedents on sentencing. The Eleventh Circuit’s decision in Rivero, like the Fourth Circuit’s in Austin, was unpublished. Why?

In certain respects, the panel’s choice not to publish Rivero seems sound, and might even, to some, be preferable. Mr. Rivero’s first argument on appeal—was he a career offender?—was foreclosed by precedent, and applying precedent to new cases rarely justifies publication alone. And the majority disposed of Mr. Rivero’s challenge to the reasonableness of his sentence by carefully hewing to the court’s precedents and to its highly deferential standard of review. Plus, the decision doesn’t create binding precedent for imposing on other defendants, in Judge Martin’s words, “an extraordinary sentence for what seems to be an ordinary crime.” The court metes out tough justice for Mr. Rivero, but only for Mr. Rivero. 

But for those who closely follow the Eleventh Circuit, that yesterday’s decision is unpublished may seem unusual. The Eleventh Circuit takes special interest in sentencing, and nearly always seems to publish decisions involving large variances (only death-penalty cases get similar automatic-publication treatment). Further, because we want similarly situated defendants to be sentenced similarly—and because, presumably, we want the process in which they are sentenced to be similar, too—publishing decisions involving sentencing is important. The court, moreover, publishes many decisions where, as in Rivero, there has been oral argument. And although it’s common for the Eleventh Circuit to dispose of an appeal in an unpublished decision after oral argument where the result is clear, it’s not common to do so where there has been a strong dissent by the only active judge on the panel. And the facts of this case are compelling: Mr. Rivero, a 56-year-old man, indeed has a long criminal history, but he was given a tough sentence for, according to the majority, an “unremarkable” current offense. And the government recommended a bottom-of-the-guidelines sentence as well. In short, this is not your run-of-the-mill sentencing case. 

Courts don’t say why they publish their decisions; per the Eleventh Circuit’s internal operating procedures, the choice is up to the majority of the panel. Thus, why Rivero is unpublished is anybody’s guess. But I suspect that a principal reason was, as Justice Thomas observed in Austin, “to avoid creating binding law for the Circuit.” If so, then the question still remains, Why?

I don’t know and, to be clear, I’m not criticizing the majority’s choice not to publish Rivero. But one by-product of its decision seems clear: the likelihood of en banc review is greatly reduced, for there is little reason for the full court to undertake the arduous process of reviewing a decision that doesn’t bind it or lower courts. In dissent, Judge Martin observed that she was “aware of no published opinion in which we have held that an above-Guidelines sentence was substantively unreasonable.” If Rivero had been published, her observation would remain true. But it would also be true that the likelihood of en banc review—and therefore the likelihood of a published opinion in which an above-guidelines sentence was held to be substantively unreasonable—would have been greater.

"Was Dzhokhar Tsarnaev trial necessary?"

That's the provocative headline to this Nancy Gertner op-ed.  If Tsarnaev would have pleaded guilty to life without parole and where Massachusetts doesn't have the death penalty, should we have used all of these federal resources on a trial?  A snippet:

Perhaps Attorney General Eric Holder wanted to show that the government does not need Guantanamo or military tribunals to secure the death penalty for those accused of terrorism. Perhaps he believed that any lesser punishment would expose the administration to criticism about the softness of the civilian system and reopen the floodgates to military tribunals. But that political calculation hardly justifies what the government seeks here, its costs, its emotional toll on the victims and on the city, the likelihood of extensive appeals, even the risk of error, particularly when there was another alternative — a plea of guilty in exchange for life without parole.
Following such a plea, the victims would have spoken at length at a sentencing proceeding, directly confronting Tsarnaev. Their narratives would have been no less compelling than what we have heard the past few weeks. The focus would have been on them, and only them. And once life without parole was imposed, the case would have been over, completely and totally. There would have been no appeals.

***
In some ways, this phase may be more difficult than the first phase. At this point, the focus necessarily shifts to Tsarnaev and away from the victims. More troubling, the jury’s life-and-death decision could be taking place at the same time as the second anniversary of the bombing. Boston is gearing up for the Marathon, and jurors will be passing the banners, the familiar sights of Marathon Monday, coupled with the city’s commemoration of the tragedy. Jurors are supposed to tune out the press. While it is difficult in a high-profile case, here their efforts will have to be extraordinary. And any juror’s exposure to the emotional and intense coverage could put the entire trial at risk on appeal.
The choices for the government should not be a death finding in a civilian court, or a death finding in a military tribunal, lethal injection or a firing squad. Countless others accused of heinous crimes have pled guilty to a life without parole. There was another way. There still is.