United States v. Dracula

For real, this guy's nickname is Dracula because "he sometimes dressed up as a vampire, complete with yellow contact lenses and gold-plated fangs."  You can guess how the 11th Circuit decided the case...  Here's the intro by Judge William Pryor:

This appeal and cross-appeal require us to review the convictions and sentence of Damion Baston, an international sex trafficker nicknamed “Drac” (short for Dracula) who sometimes dressed up as a vampire, complete with yellow contact lenses and gold-plated fangs. Baston forced numerous women to prostitute for him by beating them, humiliating them, and threatening to kill them, and he pimped them around the world, from Florida to Australia to the United Arab Emirates. Baston challenges the sufficiency of the evidence for one conviction, a supplemental jury instruction, and the award of restitution to his victims. Those challenges fail, but the cross-appeal by the government about a refusal to award one victim increased restitution has merit.

Get ready for traffic and t-storms...

...spring break is over.

Bummer.

Any trials starting up in Federal Court this week?

In the meantime, here you go...

The NY Times has this funny piece by Scott Shane. Maybe the other DM and I should do a post.

TAKE a glance at who wrote this article and you’ll understand the problem. Who’s who?

Two people with the same name can get mixed up — in both senses. Throw in the Internet, which can make geography irrelevant, and the possibility for confusion rivals that of a Shakespeare comedy, without the happy ending.

Just ask us.

For more than two decades, Scott Shane the business-school professor and Scott Shane the journalist have been mistaken for each other by co-authors, collection agencies, Google, a journalism school, public relations firms, an ex-congressman, a book distributor — and, yes, this newspaper. Being Internet doppelgängers has never been more than a persistent nuisance. But it reflects an era in which a person is not just flesh and blood but also an electronic composite, patched together from words, numbers and images, accessible at a click.

Dave Ovalle does this nice obit on Red from the state courthouse:

Outside Miami’s criminal courthouse, he was known to many only as “Red” the panhandler, a distinctive character woven into the colorful fabric of the justice community, as much a fixture as attorneys, hot-dog carts and TV news trucks.

On the Internet, his wild, woolly and wall-eyed mugshot made him a briefly viral meme to be mocked or, oddly enough, the face of an online ad hawking a dubious blood-pressure cure.

In real life, he was a 34-year-old named Brett Heinzinger, a man whose only luck seemed bad. He was born to heroin addicts, heard his grandfather murdered as a child, got addicted to drugs as a young man and wound up in South Florida chasing his next cocaine score and living under an overpass.

He died here, too — run down by a motorist on a dark rainy January night on Northwest 12th Avenue, under the Dolphin Expressway, next to the courthouse. The car never stopped. Next to him, Miami detectives found the foam cup he used to panhandle, seven pennies inside.

Will 4th Circuit split with 11th on cell site tracking?

The entire 4th Circuit considered whether the police need a warrant before getting your location data when your cell phone connects to cell towers.  The en banc 11th Circuit said no in US v. Davis and the Supreme Court denied cert, but the Florida Supreme Court said yes in Tracey.

The Washington Post covered the oral argument here:

Almost immediately Wednesday, questions from the bench centered on whether location information from cellphones is any different than records of banking transactions or landline phone calls.

Defense attorney Meghan S. Skelton said the government had essentially tracked the defendants’ every move, equating cellphone location data to “dragnet surveillance.” Maryland U.S. Attorney Rod J. Rosenstein countered that the information gleaned from cell towers was imprecise, unobtrusive and created by the wireless provider — not the government.

A divided three-judge panel of the court ruled in August that accessing the location information without a warrant for an “extended period” is unconstitutional because it allows law enforcement to trace a person’s daily travels and activities across public and private spaces.

Can you get a fair trial in an identity theft case if one of the jurors is paranoid and thinks you are "al Qaeda" and needs to be in the "jury protection program"?

According to the 11th Circuit, the answer is yes:

The district court did not clearly err in finding that Juror 9 could be fair and impartial. After hearing her answers to its questions, the district court “believe[d] her when she said that she would be fair.” ... Furthermore, the district court took measures to allay Juror 9’s fears by explaining that the case had nothing to do with terrorism and that her life was not in any danger. It reasonably found that this discussion “quelled” her concerns, especially because her concerns did not appear to be that serious to begin with. As soon as the district court started questioning her, Juror 9 confessed that she is “just paranoid.” 

Well, I guess if the juror was just paranoid, then we have nothing to worry about with the verdict of the "Arab, Muslim" defendant charged in a run of the mill identity theft case that had nothing to do with al Qaeda or terrorism.

Never give up!

I keep watching the last minute of this Texas A&M game.  Down double digits with under a minute to go... And they pull it off.  It's just a sick sick finish and shows: 1) anything is possible, and 2) how great March Madness is.  I love it.

It's Spring Break, so posting will be light this week.  If anything is going on, please email it to me and I will post it.  Or if you'd like to do a guest post, shoot one over!

Go Dore Go!

Dore Louis, along with his trusty trial partner Ricardo Martinez-Cid, scored a JOA yesterday before Judge Graham in a CJA "mere presence" case.  Interestingly, the judge granted the judgment of acquittal after the government closing (but before Dore closed).  Kudos to Judge Graham for continuing to call it like he sees it and not just letting cases go to the jury when they shouldn't be brought in the first place.

President Obama nominates Merrick Garland to Supreme Court

The irony is that he is more conservative than Justice Scalia on criminal justice issues.  Even the President is promoting his law and order background:

"Merrick Garland would take no chances that someone who murdered innocent Americans might go free on a technicality." —@POTUS #SCOTUSnominee

— The White House (@WhiteHouse) March 16, 2016

The Republicans would be silly to say no to him.

President Obama to announce SCOTUS pick at 11am (UPDATED)

UPDATE at 10am -- the AP is reporting that sources say it's Judge Merrick Garland.From ThinkProgress:

The former prosecutor also has a relatively conservative record on criminal justice. A 2010 examination of his decisions by SCOTUSBlog’s Tom Goldstein determined that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.” Goldstein “identified only eight such published rulings,” in addition to seven where “he voted to reverse the defendant’s sentence in whole or in part, or to permit the defendant to raise a argument relating to sentencing on remand,” during the 13 years Garland had then spent on the DC Circuit.
To be clear, Garland’s record does not suggest that he would join the Court’s right flank if confirmed to the Supreme Court. He would likely vote much more often than not with the Supreme Court’s liberals, while occasionally casting a heterodox vote. Nevertheless, as Goldstein wrote in 2010 when Garland was under consideration to replace the retiring liberal Justice John Paul Stevens, “to the extent that the President’s goal is to select a nominee who will articulate a broad progressive vision for the law, Judge Garland would be a very unlikely candidate to take up that role.”

Original Post -- DC people are predicting Sri Srinivasan.  If you are looking to kill time until the announcement, you can read a summary of all of his opinions by Tom Goldstein here:

Srinivasan has few significant criminal law decisions. So far as I can determine, he has voted to overturn a criminal conviction only in a single case, in which he overwhelmingly rejected the defendants’ appeals.  United States v. McGill, 2016 U.S. App. LEXIS 3734, No. 06-3190 (D.C. Cir. 2016) (member of unanimous per curiam majority) (overwhelmingly affirming convictions and sentences in large-scale drug racketeering case, although reversing with respect to a few limited issues).  In the other cases, he affirmed.  In re Sealed Case, 809 F.3d 672 (D.C. Cir. 2016) (member of unanimous majority) (rejecting challenge to sentence of supervised release); United States v. Zagorski, 807 F.3d 291 (D.C. Cir. 2015) (member of unanimous majority) (affirming child pornography sentence); United States v. Miller, 799 F.3d 1097 (D.C. Cir. 2015) (opinion for the Court) (rejecting challenges to fraud conviction); United States v. Cano-Flores, 796 F.3d 83 (D.C. Cir. 2015) (member of unanimous majority) (rejecting challenges to drug importation conviction but remanding for reassessment of $15 billion forfeiture); United States v. Ballestas, 795 F.3d 138 (D.C. Cir. 2015) (opinion for the Court) (upholding extraterritorial application of Maritime Drug Law Enforcement Act); United States v. Munoz Miranda, 780 F.3d 1185 (D.C. Cir. 2015) (rejecting attempt to challenge guilty plea); United States v. Arrington, 763 F.3d 17 (D.C. Cir. 2014) (opinion for the Court) (rejecting attempts to reopen criminal conviction); United States v. Baxter, 761 F.3d 17 (D.C. Cir. 2014) (member of unanimous majority) (rejecting challenges to fraud conviction); United States v. Garcia, 757 F.3d 315 (D.C. Cir. 2014) (member of unanimous majority) (rejecting challenges to conviction and sentence for cocaine importation); United States v. Fahnbulleh, 752 F.3d 470 (D.C. Cir. 2014) (member of unanimous majority) (affirming fraud convictions and sentences); United States v. Solofa, 745 F.3d 1226 (D.C. Cir. 2014) (member of unanimous majority) (rejecting challenge to conviction and sentence); United States v. Taylor, 743 F.3d 876 (D.C. Cir. 2014) (member of unanimous majority) (rejecting challenge to refusal to reduce crack cocaine sentence).
Srinivasan has also rejected a variety of other claims by criminal defendants, in addition to the filing fee ruling discussed above in which the Supreme Court agreed with his reading of the statute. Asemani v. United States CIS, 797 F.3d 1069 (D.C. Cir. 2015) (opinion for the Court) (upholding denial of in forma pauperis status to prisoner under three-strikes bar); Thomas v. Holder, 750 F.3d 899 (D.C. Cir. 2014) (member of unanimous majority) (rejecting prisoner’s appeal on the merits) (concurring opinion argues that Prison Litigation Reform Act’s three-strikes provision may be unconstitutional); United States v. Dillon, 738 F.3d 284 (D.C. Cir. 2013) (member of unanimous majority) (sustaining order to medicate defendant to render him competent to stand trial).
Srinivasan’s rulings favoring criminal defendants have been largely procedural. United States v. Mathis-Gardner, 783 F.3d 1286 (D.C. Cir. 2015) (member of unanimous majority) (remanding for explanation of decision to terminate supervised release); Daniel v. Fulwood, 766 F.3d 57 (D.C. Cir. 2014) (member of unanimous majority) (reinstating ex post facto challenge to parole guidelines); Payne v. Stansberry, 760 F.3d 10 (D.C. Cir. 2014) (member of unanimous majority) (reinstating claim for denial of effective appellate counsel); In re Miller, 759 F.3d 66 (D.C. Cir. 2014) (member of unanimous court) (authorizing filing of successive challenge to criminal defendant’s sentence); United States v. Wyche, 741 F.3d 1284 (D.C. Cir. 2014) (dissenting opinion) (dissenting in relevant part from sua sponte determination that sentencing determination was harmless).
In the search-and-seizure context, Srinivasan’s most interesting case found a violation of the Fourth Amendment over a dissenting opinion. United States v. Peyton, 745 F.3d 546 (D.C. Cir. 2014) (member of two-judge majority) (holding that evidence must be suppressed because third party lacked authority to authorize search of shoe box) (dissent would find authority to consent because shoebox was in common living area). But in another case, he found no Fourth Amendment violation under existing precedent and declined to join an opinion that would have revisited that precedent. United States v. Gross, 784 F.3d 784 (D.C. Cir. 2015) (opinion for the Court) (rejecting claim that police encounter amounted to Fourth Amendment seizure) (concurring opinion argues for overturning existing precedent).