Three Opinions in Child Pornography Case

By John R. Byrne

It doesn't happen too often, but on Friday three judges issued opinions in a criminal case. Both Judge Jordan and Judge Luck dissented from parts of Judge Lagoa's majority opinion in a case involving child pornography.

Judge Jordan's dissent focused on the Defendant's conviction for production of child pornography. Jordan didn't believe that the "purpose" component of the statute, which requires a defendant to use minors to engage in sexually explicit conduct for the "purpose" of producing content, was met. The Defendant in the case had snapped a single photograph during intercourse with the minor, and Jordan seemed to think the act was too spontaneous to satisfy the purpose requirement.

Judge Luck, meanwhile, opined that the majority's decision to vacate the Defendant's conviction for witness tampering was erroneous. Luck spent some time explaining what he believed the statute requires the government to prove (and what it doesn't).

Gatlin Opinion by John Byrne on Scribd

Here's hoping for more clemency in 2024...

 ... but those hopes probably won't get us far, so we need you judges to have some more mercy when sentencing.  The Guideline Manual is definitely not your friend. 

In the meantime, President Biden ended the year by granting clemency in simple marijuana possession cases, but as this Hill article by Rachel Barkow and Mark Olser point out, that did not do much and no one was released from prison.  Biden also commuted 11 sentences, which was a bigger deal.  But there is still a backlog of 16,000 cases.  16,000!  Let's go Mr. President.

The below picture is a shrine to mercy at the Chi Lin Nunnery in Hong Kong.  Every great culture values mercy.  We need more of it in the United States.

Year-End Report from Justice Roberts

By John R. Byrne

Happy New Year, everybody. Justice Roberts issued his year-end report (excerpted below). He covers how changes in technology have affected the work of the courts, covering the typewriter, the computer, and artificial intelligence. No mention of the sea change brought on by the transition from Word Perfect to Word!

Roberts Report by John Byrne on Scribd

Happy New Year!

 I hope everyone has a great new year!

To celebrate, here are some of the best moments this year at SCOTUS, from Bloomberg:

Justice Amy Coney Barrett gave an unexpected hypothetical in a free speech fight over a “Trump too small” trademark that could have been seen as a dig at the former president who appointed her to the bench. 

Concerned about how the case could impact copyright law, Barrett asked what would happen if someone “wants to write a book called ‘Trump Too Small’ that details Trump’s pettiness over the years and just argues that he’s not a fit public official.” 

Barrett wanted to know what analysis the court would apply in reviewing whether a copyright restriction was permissible. Deputy Solicitor General Malcolm Stewart, who argued the government didn’t violate anyone’s constitutional rights in refusing to trademark the phrase, explained that copyright, unlike trademark law, has been used to foster free expression.

Judge Tjoflat keeps the judges working

 I’ve never seen an opinion start like this. Have you?

Let's Just Cut to the Chase, Please

Let's Just Cut to the Chase, Please 

GUEST POST BY MICHAEL CARUSO

Yesterday, the 11th Circuit decided U.S. v. Sotis (Mizelle (M.D. Fla.) with William Pryor and Marcus joining) and affirmed the defendant’s convictions for illegally exporting scuba diving equipment to Libya.

At trial, government agent Wagner testified to his interactions with Sotis. On cross-examination, the co-defendant's counsel asked Wagner whether civil penalties were an option he could have pursued instead of criminal penalties. On re-direct, the government asked whether Wagner had seen a case with “this level of willfulness.” Sotis objected, but only to Wagner’s comparison to previous cases.

On appeal, the Court concluded that Wagner’s opinion was improper but that allowing it was not plain error. Rule 701 restricts a lay witness to testimony rationally based on the witness’s perception, which is helpful to determining a fact in issue and that is not based on specialized knowledge.  Wagner’s testimony that he had never seen so much willfulness was improper because it purported to tell the jury about Sotis’s state of mind—something to which neither he nor any other witness could testify based on his rationally based perception. Permitting his testimony was error. But "harmless." In other words, mess around prosecutors, and you WON'T find out.

The evidence ruling seems clear. Interestingly, DOJ lawyers argued on appeal that Wagner's "opinion was a rational inference based on his personal participation and observations as a special agent for the Commerce Department and therefore did not exceed the permissible bounds of witness testimony." I wonder what the lesson is here. Don't ask this type of question, or ask, and even if found to be an error, the conviction will be saved by the harmless error rule.

What also should be clear but often is not is what may happen after a party "opens the door." The prosecutors argued, and the trial judge found that Sotis had opened the door. I've always believed, however, that a lawyer cannot open the door to the introduction of inadmissible evidence. The Court didn't address this point. Perhaps the Court felt that something that should be understood didn't have to be said.

Happy Holidays all.

The blog will be very slow over the next two weeks.  

Judges, check out this order.  We hope you agree!

I'm not sure I can say it any better than the excellent Federal Magistrate Judge Andrew Edison.

I too do not want anyone to work the next two weeks, and hope that you can spend as much time as you can with family and friends. pic.twitter.com/LoS4uU3SAL

— Raffi Melkonian (@RMFifthCircuit) December 19, 2023

Alex Saab returned to Venezuela

Well this will be a Merry Christmas for Alex Saab.

He was indicted before Judge Scola in a sprawling indictment alleging FCPA and other violations.  He was sitting at FDC.  But Venezuela struck a deal with the U.S. to return up to 10 Americans in custody in exchange for Saab.  From the AP:

The Biden administration has released a close ally of Venezuelan President Nicolás Maduro in a swap for jailed Americans, The Associated Press has learned.

Alex Saab, who was arrested on a U.S. warrant for money laundering in 2020, was released from custody Wednesday. In exchange, Maduro will free some, if not all, of the at least 10 U.S. citizens who remain imprisoned in Venezuela, according to a person familiar with the situation who was not authorized to discuss the matter publicly and spoke on condition of anonymity.

The White House declined to comment.

On Friday and again on Monday, two docket entries were filed under seal in the long-dormant criminal case out of federal court in Miami, an indication that a behind-the-scenes deal was in the works.

The U.S. has long accused Saab of being a bag man for Maduro. Saab’s release would be seen as a major concession to Maduro, an authoritarian leader who is himself the target of a $15 million U.S. reward for anyone bringing him to New York to face drug trafficking charges.

The deal is also likely to anger the Venezuelan opposition, who have of late criticized the White House for standing by as the leader of the OPEC nation has repeatedly outmaneuvered the U.S. government after the Trump administration’s maximum pressure campaign failed to topple him.