Wednesday, January 30, 2019

"You are (as the author’s mother used to say) cruisin’ for a bruisin’. Don’t apologize—do better."

That was 11th Circuit Judge Newsom in United States v. Munksgard, affirming a criminal conviction "reluctantly" and over Judge Tojflat's dissent. Here's Judge Newsom's entertaining opening:
This criminal appeal presents both a surprisingly close question of evidentiary sufficiency—so close, in fact, that it has prompted a dissent—and an interesting statutory-interpretation issue. As to the former, federal law criminalizes the act of knowingly making a false statement in order to obtain a loan from a bank that is insured by the FDIC. 18 U.S.C. § 1014. Matthew Munksgard admits to knowingly making false statements in order to obtain bank loans—indeed, four times over. Even so, he contends, the government failed to show beyond a reasonable doubt, as it had to, that the institution he swindled was FDIC-insured. This case presents the (irritatingly familiar) question whether the government presented sufficient evidence to prove that pesky jurisdictional prerequisite. The proof of FDIC insurance here—as in other cases in which we have rapped the government’s knuckles—was hardly overwhelming. And given the ease with which insurance coverage could have been demonstrated—certificate, contract, cancelled check, etc.—inexplicably so. Having said that, “overwhelming” isn’t the standard, and when we view the evidence in the light most favorable to the government, as we must, see United States v. Frank, 599 F.3d 1221, 1233 (11th Cir. 2010), we conclude—albeit reluctantly—that the proof was adequate to demonstrate Munksgard’s guilt beyond a reasonable doubt. But let this be a warning to federal prosecutors: You are (as the author’s mother used to say) cruisin’ for a bruisin’. Don’t apologize—do better.

I appreciate the wonderful writing, but here's the thing -- prosecutors won't do better until there are consequences, like a reversal. There are so many appellate doctrines meant to make sure that convictions are affirmed (harmless error, abuse of discretion, and so on) that prosecutors and trial judges have learned to do whatever it takes to get the conviction. They know that there won't be any bruisin'. Judge Tjoflat has it right when he concludes:
The majority goes to great lengths to bail the government out. Nothing in our precedent compels this, and the Constitution doesn’t allow it. Because I would vacate the conviction, I respectfully dissent.

It's time to stop bailing the government out.

Federal Bar Reception tomorrow (Thursday) night

Local Federal Bar Association President David Weinstein sends the following email about this Thursday's event. It's always a good one

There might be a big game of Roman Numeral proportion coming up on Sunday, but this Thursday evening is an even bigger event. The South Florida Chapter of the Federal Bar Association will be hosting its 38th Annual Federal Judicial Reception to honor our federal judges.

Taking place at the Historic Alfred I. Dupont Building in the heart of the 305, there will be no speeches or a sit-down dinner. It’s an opportunity to mingle, network and socialize with the judiciary and your peers.

For more details, click here: https://fba-sdfla.org/event/fbas-38th-annual-federal-judicial-reception/

Tuesday, January 29, 2019

BOP refuses to give defendants their good-time credit under First Step Act

For many years, there was a debate in the criminal justice community about how much time prisoners should be receiving as good time credit.  Even though they were supposed to be getting 15%, which calculates to 54 days a year, BOP determined that they were only entitled to 47 days a year.  It doesn’t sound like a lot, but when you’re inside, every day matters.

The First Step Act fixed this problem and said that good time credit was actually 54 days a year.  And it even applied it retroactively, so many defendants believed that they would be getting out immediately.  But BOP is refusing to award the 54 days, citing to an error in the way that the statute was drafted.  From Reuters:

“You have thousands of families who thought the day this bill passed, their loved ones’ sentence was going to be recalculated and they were going to walk out of their halfway house, their home confinement ... or leave prison,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM).

“It’s a frustrating mistake,” Ring said.

Wyn Hornbuckle, a Justice Department spokesman, said the department is analyzing changes for the law and plans to “carry out all necessary steps.”

Reuters has seen a letter sent to inmates at the Federal Correctional Institution Coleman, a federal prison in Florida, in which officials acknowledged the new good-behavior credits would not take effect yet.

“The law will allow BOP in the future to apply 54 days of credit for every year a sentence was imposed, which is a change to the prior law,” the letter says.

“While this change may result in additional credit for inmates in the future, it is not effective immediately nor is it applicable to all inmates,” it says.

Apparently the White House is working on a fix to the probematic language in the statute, but this is just absurd. Judges may want to take this into account when sentencing defendants.

Saturday, January 26, 2019

"Special Counsel’s Office wrong to arrest Roger Stone instead of letting him self-surrender"

That's the title to my piece in The Hill about the arrest vs. surrender of Roger Stone.  The arrest of non-cooperators has bothered me for a long time, even for guys like Stone.  Here's the intro:
A swarm of armed federal agents wearing bullet proof vests and equipped with battering rams and other riot gear arrested Roger Stone before sunrise Friday morning. Video cameras from CNN were present to capture the show of force.
There was absolutely no good reason to arrest Stone instead of letting him self-surrender like others who have cooperated with the investigation such as Michael Flynn.
And the conclusion:
Allowing Stone to self-surrender — like others who have cooperated with the government — would show that the Special Counsel is not going to retaliate or unnecessarily embarrass those who do not cooperate with his office.
There’s a long and controversial history of the perp walk.
Of course, sometimes arresting a defendant is necessary. For example, if there is a fear that the person will flee or destroy evidence, then an arrest might be appropriate. But here, where Stone knew of the investigation and was not a flight risk, there was no reason to arrest him before the sun came up with guns blazing.
He would have self-surrendered like others who were permitted to do so in this case.
Instead of instilling confidence in the Special Counsel’s office as neutral and detached, this arrest will give critics of that office a reason to say that it is acting inappropriately and with no real law enforcement purpose.
 Please click through to the article and let me know your thoughts.

Friday, January 25, 2019

Roger Stone arrested in Broward (UPDATED)

He will make his first appearance today at 11am in magistrate court in Ft. Lauderdale. Here’s the indictment which charges obstruction and false statements.

And here is the CNN story for more info.

Questions —  why not let him surrender? Was it a good use of resources to send all of those armed FBI agents to his house in the morning?  Why arrest him on a Friday?  Will the government be asking to hold him no bond over the weekend as they are entitled to do until the bond hearing next week?

UPDATE — The Special Counsel agreed to release Stone on a personal surety bond.