February 27, 2010
Diet pill fraud nets 20-year below-guideline federal sentence (and ads for diet pills)This federal sentencing story out of Florida, which is headlined "Diet pill creator sentenced to 20 years for Lipoban’s fraudulent claims: Boca Raton man bilked more than 130,000 customers, feds say," caught my eye for various reasons. Here are the interesting details:
Lipoban was advertised as a miracle drug that absorbed fat, allowing people to shed weight without changing their diets. The claim was a lie, but the pills did absorb something — money from people's wallets. The Boca Raton man behind the ads spent the better part of three decades making similar weight-loss claims, raking in enough money to buy a posh Virgin Islands hideaway.
Frank Sarcona's years of amazing diet promises came to an end Friday as he was sentenced to 20 years in federal prison for bilking more than 130,000 Lipoban customers out of at least $10 million.
A federal jury in West Palm Beach convicted Sarcona in October of 29 felony counts related to Lipoban, including money laundering, wire fraud and misbranding of a food. Sarcona, 58, secretly helped form Lipoban in 2000 just months after cutting a deal with the Federal Trade Commission over the misleading claims of his previous weight-loss company, SlimAmerica.
Even before Sarcona started Lipoban, a federal judge described him in a 1999 ruling as having "a long record of assorted fraudulent schemes which have bilked thousands of victims out of millions of dollars in more than a dozen states." With such weight-loss companies as Forever Thin and Amerdream, Sarcona racked up 13 state or federal cease-and-desist orders dating back to 1984.
After federal authorities raided Lipoban in 2004, Sarcona started up yet another diet pill company, Nature's Pharmacy, using an advertising campaign nearly identical to Lipoban's.
Before learning his fate Friday afternoon, Sarcona made one last pitch — a 15-minute plea for leniency to U.S. District Judge Kenneth Marra. He portrayed himself as a crusader for dietary supplements in the face of a federal government that, he said, wants to suppress them.
He acknowledged that he make mistakes in his Lipoban advertisements, but said he could have fixed them if the government had alerted him to the problems. "I don't stay up at night thinking of ways of bilking little old ladies out of $50," Sarcona said.
Assistant U.S. Attorney Kerry Baron told Marra that Sarcona had spent a lifetime deceiving people, preying on those desperate to lose weight. "If Mr. Sarcona is not given the stiff sentence he deserves, he will repeat this," Baron said.
Sarcona had faced between 27 and 33 years behind bars under federal sentencing guidelines. Marra opted for a shorter sentence, saying that while the guidelines might be appropriate for someone running a Ponzi scheme, they weren't in a case where victims lost only what they paid for the pills, typically $60 per bottle. But Marra said Sarcona still needed a lengthy prison sentence to reflect on his history of suspect business practices.
It struck me as notable that the federal sentencing judge justified a below-guideline sentence for the defendant because his fraud was not of the Ponzi variety. I also found interesting that the defendant (effectively?) pitched for sentencing leniency by saying he was a "crusader for dietary supplements." And finally, as clicking through the to on-line newspaper article shows, it seems that this crusade has worked: there were links to at least three diet pills ads on the webpage with this article.
February 26, 2010
New report detailing high percentage of inmates with substance abuse problemsThis new press releases from the National Center on Addiction and Substance Abuse (CASA) at Columbia University reports on a new study concerning crime, prisoners and addictions. Here in how the press release starts:
Of the 2.3 million inmates crowding our nations prisons and jails, 1.5 million meet the DSM IV medical criteria for substance abuse or addiction, and another 458,000, while not meeting the strict DSM IV criteria, had histories of substance abuse; were under the influence of alcohol or other drugs at the time of their crime; committed their offense to get money to buy drugs; were incarcerated for an alcohol or drug law violation; or shared some combination of these characteristics, according to Behind Bars II: Substance Abuse and America’s Prison Population. Combined these two groups constitute 85 percent of the U.S. prison population.
The new 144-page report released today by The National Center on Addiction and Substance Abuse (CASA) at Columbia University also reveals that alcohol and other drugs are significant factors in all crime. In 2006, alcohol and other drugs were involved in these inmate offenses:
- 78 percent of violent crimes;
- 83 percent of property crimes; and
- 77 percent of public order, immigration or weapon offenses; and probation/parole violations.
The CASA report found that only 11 percent of all inmates with substance abuse and addiction disorders receive any treatment during their incarceration. The report found that if all inmates who needed treatment and aftercare received such services, the nation would break even in a year if just over 10 percent remained substance and crime free and employed. Thereafter, for each inmate who remained sober, employed and crime free the nation would reap an economic benefit of $90,953 per year.
“States complain mightily about their rising prison costs; yet they continue to hemorrhage public funds that could be saved if they provided treatment to inmates with alcohol and other drug problems and stepped up use of drug courts and prosecutorial drug treatment alternative programs,” said Susan E. Foster, CASA’s Vice President and Director of Policy Research and Analysis.
Joseph A. Califano, Jr., CASA’s Chairman and President and former U.S. Secretary of Health, Education, and Welfare, called the nation’s current prison policies, “Inane and inhuman. Between 1996 and 2006, the U.S. population grew by 12 percent. Over that same period, the number of adults incarcerated grew by 33 percent to 2.3 million inmates and the number of inmates who either met the DSM IV medical criteria for alcohol or other drug abuse and addiction or were otherwise substance involved shot up by 43 percent to 1.9 million inmates. The tragedy is that we know how to sharply reduce the costs of incarceration and the crimes committed by substance-involved offenders.”
The report also noted that in 2005, federal, state and local governments spent $74 billion on incarceration, court proceedings, probation and parole for substance-involved adult and juvenile offenders and less than one percent of that amount -- $632 million -- on prevention and treatment for them.
"Wisconsin Teen Gets 15 Years for Facebook Sex-Extortion Scam"
The title of this post is the headline of this piece from Wired. Here are the basics:
A Wisconsin teenager was sentenced to 15 years in prison Wednesday for an extortion scheme that had him tricking male classmates into sending them nude photos of themselves, then blackmailing them with exposure if they didn’t have sex with him.
In 2008, defendant Anthony Stancl, who was 18 at the time, posed as a girl on Facebook and tricked more than 30 male classmates into sending him photos of themselves. According to court documents, authorities found 300 photos of underage males on his computer as well as video of some of the victims exposing their genitals and masturbating; some of the victims were 15 years old....
Stancl told the victims that he was an extortion victim himself and was being forced to have sex with them and photograph it in order to prevent other photos of himself from being exposed. His attorney, Craig Kuhary, says that Stancl’s activity was prompted by anxiety over his sexual orientation and the alienation he felt after he was humiliated and outed by another student. Stancl claimed he had been sexually assaulted by an upperclassman during his sophomore year.
South Korea's highest court upholds death penaltyAs detailed in this report, which is headlined "Constitutional Court Upholds Death Penalty," there is more going on these days in South Korea than just obsession over an Olympics superstar. Here are the details:
The Constitutional Court, on Thursday once again upheld the death penalty by a 5 : 4 majority. The court last declared capital punishment constitutional in a ruling in November 1996. The court had been asked by a 72-year-old fisherman who was sentenced to death for murdering four tourists to decide whether capital punishment is constitutional.
In the ruling, the court said capital punishment is among penalties within the purview of Article 110, Clause 4 of the Constitution. "Capital punishment does not contradict the constitutional guarantee of the right to life or infringe the constitutional guarantee of human dignity," it said.
"Capital punishment is penalty with the public goal of realizing justice through just retribution against atrocious crimes and protecting society by preventing crimes," the court said. "As a kind of necessary evil, it is still functioning properly."
The court said the death penalty "is a more powerful deterrent to crimes than life imprisonment, where only convicts' physical freedom is restricted. A mere life sentence against perpetrators of heinous crimes is incompatible with the desire for justice of families of victims and ordinary people."
But the four minority judges said capital punishment does conflict with the guarantee of the right to life. "Capital punishment should be abolished and replaced with a life sentence without parole," they recommended.
The majority for the death sentence in 1996 was 7: 2. No one has been executed in the country for over a decade, and Amnesty International lists Korea as having "de facto" abolished the death penalty.
"'Midwest Madoff' sentenced to 9 years"The title of this post is the headline of this new article from the St. Louis Disptach. Given that the fraudster discussed in the article is female, I suppose she should be glad she is not being called a "Mrs. Madoff" as well as being glad that she got a sentence that's barely 5% of what Bernie Madoff received. Here are the specifics of this case:
A $900 tanning bed for show pigs and a barn cooling system to encourage thick, prize-winning coats in cattle were but two of the personal items bought by the woman who committed the largest agricultural fraud in Missouri history, investigators said Thursday.
That woman, Cathy M. Gieseker, 45, was sentenced in federal court here to nine years in prison on a single mail fraud charge for bilking at least 179 Missouri farmers out of more than $27 million. She pleaded guilty in November. District Judge Charles Shaw and others in court Thursday referred to her as the "Midwest Madoff," a derisive reference to Wall Street swindler Bernard Madoff, who stole billions in a pyramid scheme.
Gieseker, who lived in Martinsburg, Mo., in Audrain County, claimed to have a special deal with agricultural giant Archer Daniels Midland that let her broker crops for premium prices. Farmers turned over their crops to Gieseker, who promised to later pay them a high return for their yield.
Officials said that she had no such arrangement and that Gieseker merely churned money to pay her early customers with cash collected for the crops of later ones. It was a classic pryamid scheme, they said.
Major Mexican drug boss gets 25 years in super-secret federal sentencingAn interesting super-secret sentencing proceeding took place earlier this week as reported in this Houston Chronicle article from yesterday, which is headlined "Drug cartel chief sentenced in secrecy," and this New York Times article today, which is headlined "Mexican Drug Kingpin Sentenced to 25 Years in Secret Hearing." Here is the start of the NYT coverage:
One of the most brutal and feared drug kingpins in Mexican history was sentenced this week to 25 years in prison during a highly secretive hearing here that was closed to the public to protect the lives of everyone involved, according to a court transcript unsealed Thursday.
Osiel Cárdenas Guillén, the head of the Gulf Cartel, which controls much of the cocaine traffic across the border in South Texas, has agreed to cooperate with the federal government, according to the transcript. Mr. Cárdenas pleaded guilty to five counts in a lengthy indictment, including drug dealing, money laundering and the attempted murder and assault of federal agents. He also forfeited $50 million in assets.
The sentencing took place in a federal courtroom in Houston behind locked doors and armed guards before Judge Hilda G. Tagle, who granted the government’s request to bar the public. Only two members of Mr. Cárdenas’s family and a handful of federal agents were present.
Judges often seal particular documents in drug and terrorism trials to protect informants or continuing investigations, but it is highly unusual to seal a sentencing hearing for security reasons.
Notably, the Houston Chronicle has this potent new editorial complaining about all the secrecy in this case. The piece is titled "Justice hidden: Drug kingpin Cardenas’ sentencing hearing was wrongly kept from public view." Here are snippets:
Cardenas was sentenced to 25 years in a federal prison here Wednesday, but no member of the public was present to witness it. None of this proceeding, held in a federal courtroom, took place within public view. The sentencing hearing, conducted by U.S. District Judge Hilda Tagle, was not listed on the judge's public schedule till after it was completed. It was kept closed without any explanation until after the fact.
Even the terms of the drug kingpin's sentence remain unclear, since most of the prosecution was handled through closed hearings and sealed documents. It is not clear, for example, how much time Cardenas will actually serve.
This is unacceptable. Cardenas deserves no such special treatment.
“There's no reason for holding the Cardenas sentencing hearing in secret, especially when so many high-profile organized crime, drug kingpin and terrorist trials have not been handled this way,” said Fred Hartman, chairman of the Texas Daily Newspaper Association/Texas Press Association legislative advisory committee. “It undermines the public's confidence in the federal court system and makes our government less accountable.”
Indeed it does. Given Cardenas' violent history, concerns about security are understandable. But these can and should be addressed without denying public access to the justice system. “At a minimum, the public should be entitled to an explanation of why secrecy is being granted,” said Chronicle Editor Jeff Cohen. “That has not happened in the Cardenas case, and it is wrong.”
These are quintessentially public matters. They involve public safety. Public dollars. Even public health and well-being. This very public business must be conducted in full public view.
February 25, 2010
Effective ABA Journal review of Booker at five
Mark Hansen has this effective new piece, headlined "You Say You Want a Revolution: In Booker plus five, there’s been rumbling but hardly rebelling," about federal sentencing life since Booker. Here is how it begins:
Jan. 12 marked the fifth anniversary of U.S. v. Booker, the U.S. Supreme Court decision that some said would revolutionize federal sentencing. The case transformed federal sentencing guidelines from what had long been a mandatory system into an effectively advisory one.
Defense lawyers cheered. District court judges viewed it as sort of an Emancipation Proclamation from the tyranny of the mandatory guidelines. Prosecutors, on the other hand, feared the decision would lead to wildly inconsistent sentences. And some lawmakers worried that it would plunge the courts into “pre-guidelines chaos.”
Five years out, however, Booker has become anything but revolutionary. So far it’s resembled a midfield scrum with either side trying to figure out which way the ball is bouncing.
Will Florida's "mini-Madoff" get a mini version of Madoff's 150-year prison sentence?With fortuitious timing because I am in Florida this morning to talk about white-collar sentencing, this Reuters story provides another case-study in white-collar sentencing issues. The piece is headlined "Florida's 'mini-Madoff' Nadel admits huge fraud," and here are the basics:
Arthur Nadel, a former Florida fund manager dubbed a "mini-Madoff" for running a decade-long investment fraud of nearly $400 million, pleaded guilty on Wednesday to criminal charges.
Nadel, 77, disappeared for two weeks before his arrest in January 2009. He had left a letter for his wife imploring her to use a trust fund for her benefit and "sell the Subaru if you need money," a reference to their motor vehicle.
The FBI arrested Sarasota, Florida-based Nadel in his home state, but the case was moved to New York because he traded through a brokerage in the city, Shoreline Trading, an affiliate of Goldman Sachs Group Inc.
Nadel, who looked frail in court and remained seated throughout the proceeding, pleaded guilty to an indictment of 15 charges, including securities fraud, mail fraud and wire fraud before Manhattan federal court Judge John Koeltl. "I understand the anger and rage of all of the people I let down so badly," Nadel told the court. "I want them all to know I will carry this burden for the rest of my life."...
Nadel admitted to creating false and fraudulent account statements for his Scoop Management LLC funds. Nadel lost money and stole investor money to pay for several businesses, including real estate in North Carolina, his wife's flower shop and private planes, prosecutors said. Nadel's guilty plea calls for him to forfeit $162 million....
Nadel has been unable to make bail and will remain in jail until sentencing on June 11 . Under the sentencing guidelines for his crimes, he can expect to spend the rest of his life in prison.
Parallels were drawn between Nadel and Madoff because they both ran Ponzi schemes in which early investors were paid with money from new clients, many of them Florida residents. Madoff is serving a 150-year prison sentence for orchestrating Wall Street's biggest investment fraud of as much as $65 billion.
In light of his age, even a 15-year sentence would likely be tantamount to a life sentence for Nadel. And yet I doubt prosecutors would be content with that number because, as in the Madoff case, the ultimate sentence in this case is more critical as a conceptual benchmark for other cases than for determining the personal fate of this elderly defendant.
"In School and Out of Trouble? The Minimum Dropout Age and Juvenile Crime"The title of this post is the title of this empirical piece I noticed at SSRN that suggests keeping kids in school may be even more effective than sending them to prison in order to reduce juvenile crime. Here is the abstract:
Does increasing the minimum dropout age reduce juvenile crime rates? Despite popular accounts that link school attendance to keeping youth out of trouble, little systematic research has analyzed the contemporaneous relationship between schooling and juvenile crime. This paper examines the connection between the minimum age at which youth can legally dropout of high school and juvenile arrest rates by exploiting state-level variation in the minimum dropout age.
Using county-level arrest data for the U.S. between 1980 and 2006, a difference-in-difference-in-difference empirical strategy compares the arrest behavior over time of various age groups within counties that differ by their state’s minimum dropout age. The evidence suggests that minimum dropout age requirements have a significant and negative effect on property and violent crime arrest rates for youth aged 16 to 18 years-old, and these estimates are robust to a range of specification checks. Furthermore, the results are consistent with an incapacitation effect; school attendance decreases the time available for criminal activity. Not only do these findings provide support for the efficacy of programs intended to keep youth in school and out of delinquency, but this information is likely to be of value to policy-makers deciding on whether or not to increase their state’s minimum dropout age.
February 24, 2010
Today's SCOTUS sex offender Ex Post oral argument transcripts
Thanks to a delay at LGA on my way out of dodge (and also my friends cut-and-paste and posting by SCOTUSblog), I now have a chance here to post in this space the transcripts of SCOTUS oral arguments today here for Carr v. United States (08-1301) and here for United States v. Marcus (08-1341). I fear I won't have a chance to read these transcripts for a while, but perhaps readers can use the comments to note any important highlights.
Off to Miami for National Institute on White Collar Crime
As detailed here on the ABA's website, today starts the 2010 White Collar Crime National Institute. I have the great fortune and pleasure to be escaping a predicted snowstorm in NYC to head this afternoon to Miami Beach to participate on a terrific sentencing panel taking place Thursday morning.
Everyone can access at this link the full program for this big event, which details that the feature speaker is Lanny Breuer, the DOJ Assistant Attorney General. In addition, the promotional materials indicate that "keynote panels will focus on the most significant fraud trials of the past year, as well as an in-depth review of recent developments regarding the Brady Rule." Here is how my panel is titled and described:
SENTENCING IN WHITE COLLAR CRIMINAL CASES AND WITNESS/VICTIM RIGHTS: Panelists will address several topics related to sentencing in white collar criminal cases, including reasonableness, loss causation and calculation, the rights of victims, and approaching any appeal.
Oral argument transcript finally available for in O'Brien/Burgess case
I am pleased to finally be able to report that the Supreme Court now has posted here the transcript for Tuesday morning's oral argument in United States v. O'Brien and Burgess, the combined cases concerning the application of the machine-gun mandatory minimum sentencing enhancement of 18 U.S.C. § 924(c). I have heard from multiple source that Blakely fans will want to give this a close read, and that's my plan as I jump on a plane this afternoon to head to Miami (more on that later). I hope to have comments on the argument in a future post, but I hope readers do not wait for me to opine on this argument's merits (or demerits).
Some recent related posts:
- Might the Harris limit on Apprendi be at risk with O'Brien cert grant?
- Might Apprendi be at risk with O'Brien cert grant?
- Might the Harris limit on Apprendi be questioned in O'Brien/Burgess argument?
Great reporting on what states (and politicians) are now doing with early release programs
John Gramlich writing at Stateline.org has this great new piece, which is headlined "A crack in the prison door," that takes a close look developments and debates over early prisoner release programs in the states. Here are excerpts:
[A] law that lets some Oregon inmates trim as much as 30 percent from their sentences through expanded “earned-time credits,” which are awarded to prisoners who finish coursework, gain work experience or otherwise work to improve their lives behind bars. Created to save the state money in extremely lean fiscal times, the law has moved up release dates for about 3,500 prisoners, including about 950 who have already been released from prison an average of 55 days ahead of schedule.
But a recent backlash over Oregon’s law serves as a reminder of the political pitfalls that can accompany changes in criminal justice policy, particularly when those changes open prison doors earlier for some inmates. California, Colorado, Illinois, Kentucky, Michigan and Wisconsin are among the other states that have recently accelerated prisoner releases or are considering doing so....
Budget-driven efforts to speed prisoner releases and save states money have touched off political debates elsewhere this year, a major election year in which lawmakers in 46 states face reelection and no candidate wants to be labeled “soft on crime.” The debates have raged even in places where inmates have been released just days earlier than they ordinarily would have been....
[O]ften lost in the debate over accelerated prison releases is that they are relatively common. Besides the 44 states that allow inmates to earn good-time credits, at least 31 also provide some form of earned-time credits for those who enroll in educational or other programs, according to a study last year by the National Conference of State Legislatures. Nevada, for example, allows some inmates to reduce their time by 60, 90 or 120 days if they complete a certificate, diploma or degree while behind bars. In many other states, correctional authorities can grant “compassionate releases” to sick or dying inmates.
In 2003, lawmakers in Washington state passed a law giving some nonviolent drug and property offenders the chance to reduce their sentences by as much as 50 percent in one of the nation’s most aggressive expansions of earned-time credits. A 2009 study by the independent Washington State Institute for Public Policy found that the program has resulted in lower recidivism rates among those who have been released ahead of schedule. But it also found an increase in property crimes after the change went into effect.
The institute’s finding on recidivism has made Washington a model for lawmakers in other states that have sought accelerated prisoner releases, and is frequently mentioned by criminologists. “Length of stay has nothing to do with the recidivism rate,” Todd Clear, the incoming dean of the School of Criminal Justice at Rutgers University in New Jersey, says. “If I let someone out (early), I’m not increasing the chances of them committing a crime. I’m just changing the date.”
Despite the studies, politicians and corrections officials are keenly aware that a single, well-publicized crime by an inmate who has been granted accelerated release can call entire programs into question, virtually overnight. In California, for instance, outrage over the state’s good-time credits has been exacerbated by the early release of a Sacramento County inmate who was arrested in connection with an attempted rape less than 24 hours after walking free.
For that reason, Clear believes, early-release initiatives are a recipe for political disaster. “The minute you let a bunch of people out early, you own everything they do,” he says — a point acknowledged by Granholm. “I think any changes in the corrections system can certainly be exploited by political gain by those who want to do so,” Granholm says. “And it’s true in every state in the country.”
Ex Post Facto day for sex offenders at the Supreme CourtAs detailed in this FOXNews report, which is headlined "Supreme Court to Hear Sex Offender Case Sotomayor Set Aside in Lower Court," today the Supreme Court hears argument in two cases dealing with sex offenders and the constitutional limits on prosecution resulting from the Ex Post Facto clause. Here are the basics:
It's all about sex at the Supreme Court Wednesday when the justices hear arguments in cases involving a national sex offender database and the federal government's appeal of a lower court ruling setting free a man dubbed the S&M Svengali.
The case involving Glenn Marcus (aka the S&M Svengali) has drawn a bit of added interest because now-Justice Sonia Sotomayor was part of the three judge panel in New York that set aside a nine-year prison sentence.
Marcus was convicted of sex trafficking after encouraging women to participate in what the government describes as "violent sexual activity." He posted photos and videos from the encounters on a for-profit Web site called "Slavespace."
Following his conviction, a three judge panel of the Second Circuit U.S. Court of Appeals that included Sotomayor set aside the verdict saying some of the alleged bad acts took place before the 2000 Trafficking Victims Protection Act went into effect....
Wednesday's other case looks at a 2006 federal sex offender registration law which requires newly convicted offenders to sign up in an updated national database. In 2007, the Justice Department issued a requirement that people convicted of sex offenses before 2006 also register in the new database.
In 2003, Thomas Carr was convicted in Alabama of improperly touching a 14 year old girl. He then moved to Indiana where after getting into a fight (with no sexual connection) Carr was arrested and convicted for failing to register under the new law. He has appealed the conviction claiming the after-the-fact requirement violates the Constitution's Ex Post Facto Clause.
SCOTUSblog provides an overview of the Carr case in this new post, which is titled "SORNA and the Ex Post Facto Clause: Carr v. United States, Argument preview." It also provides an overview of the Marcus case in this post, which is titled Interpreting the Ex Post Facto Clause: United States v. Marcus, Argument preview."
February 23, 2010
Diverse headlines report on prison sentence for former NBA player Jayson Williams
The long, long, long running prosecution of former New Jersey Nets star basketball player Jayson Williams for accidentally shooting and killing his limousine driver finally reached sentencing today. And these diverse headlines make it a bit of a challenge to figure out what sentence he received:
- From CNN, "Former NBA star Jayson Williams gets five-year sentence in shooting"
- From the Herald Sun, "NBA star gets 18 months for shooting"
This snippet from the Herald Sun piece explains how all these headlines connect (and also why the case finally got to sentencing):
Williams' sentence runs 5 years, including additional charges for trying to cover up the crime, but he will be eligible for parole after 18 months with good behavior.
He had hemmed and hawed for months over the plea offer, but finally decided it was better than facing up to 10 years in prison if he was convicted at a scheduled retrial on a manslaughter charge for the February 14, 2002, shotgun killing.
Fourth Circuit (unpublished!?) opinion follows Skoien on Heller challenge to § 922(g)(9) ... just after Seventh Circuit vacates itAs both a Second Amendment believer a fed courts geek, a notable ruling today from the the Fourth Circuit today has me excited and annoyed and amused all at the same time. The ruling is in US v. Chester, No. 09-4084 (4th Cir. Feb. 23, 2010) (available here), and it begins this way:
A grand jury sitting in the Southern District of West Virginia indicted William Samuel Chester, Jr., for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9). Chester moved to dismiss the indictment, arguing that application of the federal statute to him violated his Second Amendment right to keep and bear arms as explained in District of Columbia v. Heller, 128 S. Ct. 2783 (2008). The district court denied the motion. Thereafter, Chester pled guilty but reserved his right to appeal the district court’s denial of his motion to dismiss the indictment. He now reiterates his Second Amendment challenge to § 922(g)(9).
In the proceedings below, the district court did not address whether Heller required the Government to justify individual laws that restrict Second Amendment rights. Instead, it dismissed Chester's claim in reliance on Heller’s much-noted language as to “presumptively lawful” gun regulations—notably, the felon-dispossession laws. JA 60-61. Following the pattern of other lower federal courts, it drew an analogy between felons and domestic violence misdemeanants, concluding that the Hellerlanguage should be read to include both because the potential violent acts of those found guilty of domestic violence is often far greater than that of those who commit non-violent felonies. JA 61.
We find that the district court erred when it failed to scrutinize § 922(g)(9) apart from the language in Heller. We agree with the Seventh Circuit decision in United States v. Skoien, 587 F.3d 803, 808 (7th Cir. 2009), insofar as it held that challenges to firearms regulations under the Second Amendment must be individually analyzed because such regulations restrict the exercise of a constitutional entitlement. In this case, the district court neither determined the most appropriate level of scrutiny of § 922(g)(9), nor did it substantively apply that level of scrutiny to an analysis of § 922(g)(9), and therefore, we vacate and remand this case for further proceedings.
This Chester ruling by the Fourth Circuit excites me because, as regular readers know, I think the criminal prohibition on gun possession by misdemeanants in § 922(g)(9) is constitutionally questionable in the wake of Heller, and I believe lower courts have been too ready and eager to dismiss Second Amendment attacks on § 922(g)(9).
But... this Chester ruling by the Fourth Circuit annoys me because, apparently in order to try to keep this important ruling below the radar screen, the panel decided to denominate this opinion "unpublished" so that it is "not binding precedent in this circuit." Because this Chesterruling breaks new ground and provides important guidance on a frequently arising issue, I cannot fathom a valid reason why it should be "unpublished."
And... this Chester ruling by the Fourth Circuit amuses me because, as noted above, the panel declares that it "agree[s] with the Seventh Circuit [panel] decision in United States v. Skoien, 587 F.3d 803, 808 (7th Cir. 2009)," exactly one day after the Seventh Circuit itself decided to take the Skoien case en banc (which I believe has the effect of vacating the panel decision). Thus, the Chester panel not only intentionally gave its own opinion a shadow quality by making it "unpublished," but it also unintentionally gave its an opinion a ghostly quality by relying heavily on a now gone case.
A few related Second Amendment posts:
- Seventh Circuit gives a little life to Heller challenge to prohibition on DV misdemeanant gun possession
- Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
- The lack of originalist justification for excluding felons from the Second Amendment
- Assailing the unjustified Second Amendment limits in Heller
"Hire A Lawyer, Escape the Death Penalty?"The title of this post is the title of a new Issue Brief authored by Scott Phillips coming from the American Constitution Society for Law and Policy. This new paper on the administration of the death penalty is available at this link, where it is summarized this way:
In this Issue Brief, Professor Phillips describes the results of his study to test the claim made by death penalty opponents that wealthy defendants who hire legal counsel are exempt from capital punishment. His research focuses on Houston, Texas, and surrounding Harris County, which is the county with the largest number of executions in the United States and the largest jurisdiction that uses court-appointed lawyers instead of a public defender to represent defendants who cannot afford an attorney. Professor Phillips compares the outcomes in cases where the defendant hired a lawyer with cases where the defendant had a court-appointed lawyer and finds that, “[h]iring counsel for the entire case not only eliminates the chance of death, but also dramatically increases the chance of an acquittal.” He also finds that “[h]iring counsel for a portion of the case substantially reduces the chance of death,” and “hiring counsel does not appear to be the province of the wealthy because virtually all capital defendants seem to be poor.”
Professor Phillips argues that these dramatic findings “are not an indictment of appointed attorneys, but rather an indictment of the structural deficiencies inherent in the appointment method of indigent defense.” He discusses these deficiencies and reform efforts in Texas aimed at addressing them. He believes that the reform efforts have not succeeded, however, and argues that “the solution is to create a public defender office with resources proportionate to the DA’s office. Such a proposal is not meant to suggest that a public defender office would be a panacea. But a public defender would reduce differential treatment and eliminate the structural deficiencies inherent in the appointment method.” He concludes by asserting that, “Houston’s distinction as the capital of capital punishment creates a special obligation to provide the most rigorous system of indigent defense possible. The appointment method does not – and arguably cannot – meet such a standard.”
Great new features on improved website of The Sentencing ProjectI just received this notable web-news via e-mail:
The Sentencing Project is excited to announce our new and improved Web site to help in your research and advocacy efforts for criminal justice reform.... Elements of the new site include:
Interactive U.S. Map -- A newly designed map provides access to comprehensive statistics, including total corrections populations, state corrections expenditures, racial/ethnic disparity in incarceration, number of juveniles in custody, and felony disenfranchisement. Users can also compare data for different states, side by side.
New Site Search -- We have enhanced our search engine which now enables users to search for keywords within PDFs and other documents....
New Race and Justice Clearinghouse -- The Sentencing Project is host to the first, online database of research and information on race and justice. Our exclusive resource contains more than 450 bibliographic references for books, articles and reports on the intersection of race and ethnicity with the criminal justice and juvenile justice systems.
This new Interactive US Map is an especially exciting feature of The Sentencing Project's new and improved website, as it provides instant and easy access to a lot of important state-by-state data.
More opinions on the Lynne Stewart sentencing as Second Circuit denies en banc reviewToday the Second Circuit has denied en banc review of its panel decision to reverse the below-guideline sentence given to (in)famous laywer Lynne Stewart. Here is the text of the order:
Following disposition of this appeal on November 17, 2009, and prior to the amended disposition on December 23, 2009, active judges of the Court requested a poll on whether to rehear the case in banc regarding only the sentence imposed on defendant Lynne Stewart. A poll having been conducted and there being no majority favoring in banc review, rehearing in banc is hereby DENIED.
Chief Judge Jacobs concurs in an opinion joined by Judges Wesley and Hall; Judge Pooler concurs in a separate opinion; and Judge Cabranes dissents in an opinion joined by Judge Raggi.
As this order reveals, a number of additional circuit judges were eager to add their two cents in this high-profile sentencing case, and the 30+ pages with these additional opinions can be accessed at this link.
UPDATE: The New York Law Journal has this article addressing this latest ruling, which is headlined "2nd Circuit Denies En Banc Review of Lynne Stewart's Sentence." Here is how it starts:
The light prison sentence given to disbarred attorney Lynne Stewart following her conviction for providing material support to a terrorist conspiracy continues to divide the 2nd U.S. Circuit Court of Appeals.
Three different opinions were issued by the circuit Tuesday as judges staked out positions on how the court should review the 28-month sentence Southern District Judge John J. Koeltl ordered Stewart to serve in 2006 for helping imprisoned Sheikh Omar Abdel Rahman communicate with his followers in Islamic Group.
The unmistakable message from at least five of the nine active judges is that Koeltl must impose a significantly tougher penalty on the 70-year-old Stewart when she is re-sentenced on April 22.
Notable CVRA ruling from the Sixth Circuit rejecting victims' plea to reject corporate plea dealThe Sixth Circuit disposed of an interesting mandamus petition from crime victims this morning in US v. Arctic Glacier International, No. 10-3160 (6th Cir. Feb. 23, 2010) (available here). The corporate setting, and the crime victims' requested relief, make this ruling especially notable, and here are snippets from the opinion:
This petition for a writ of mandamus and a related appeal arise from the proceedings in United States v. Arctic Glacier Int’l Inc., No. 1:09-cr-00149 (S.D. Ohio). In that case, Arctic Glacier International was charged in a criminal information with violating 15 U.S.C. § 1 by participating in “a conspiracy to suppress and eliminate competition by allocating packaged-ice customers in southeastern Michigan and the Detroit, Michigan metropolitan area.” The petitioners describe themselves as “nine consumers and one business that paid too much for packaged ice as a result of Arctic Glacier’s offense” based on purchases both within and outside of the geographic area of the offense. Their civil action for damages is pending in the Eastern District of Michigan. In re Packaged Ice Antitrust Litig., No. 08-md- 1952 (E.D. Mich.). In these criminal proceedings, the petitioners claim to be victims of the crime under the Crime Victims’ Rights Act, 18 U.S.C. § 3771....
Whether these petitioners as indirect purchasers were “directly and proximately harmed” by the actions of Arctic Glacier is an issue that is largely beside the point, because we conclude thatthe district court afforded them the status of crime victims. That is, the petitioners were allowed a full opportunity for participation. That included their appearance through counsel at the arraignment, at the plea hearing, and at sentencing. The district court delayed a decision on whether to accept the guilty plea to allow counsel for the petitioners an opportunity to confer with government counsel. Counsel for the petitioners admitted at the sentencing hearing that upon their entry into the case, the district court had afforded them every opportunity for participation. Notwithstanding that active participation, the petitioners assert a right to an earlier notice prior to filing of the charges and direct involvement with the government’s negotiation of a plea agreement. The petitioners’ right to such notice is uncertain, and based on the record in this case, we do not find this to be grounds for relief in mandamus.
The petitioners disagree with the district court’s final decision, made after hearing from them on multiple occasions, to accept the plea agreement and impose sentence pursuant to that agreement. They object that the plea agreement makes no provision for restitution in deference to the pending civil causes of action. They seek through this petition to vacate the plea agreement, to direct the district court to reopen the proceedings, and to participate as a party to the renegotiation of a plea agreement that will include provisions for restitution in their favor. Although the Act reaffirms the right of crime victims “to full and timely restitution as provided in law,” it does not compel such a result in this case. Upon review, we cannot conclude that the district court abused its discretion in accepting the agreement. The record reflects a consideration of all appropriate factors. The district court reasonably concluded that the difficulty of determining the losses claimed would so prolong and complicate the proceedings that any need for restitution would be outweighed by the burden on the sentencing process.