Crime in the Suites: An Analyis of Current Issues in White Collar Defense
Archive for the ‘White Collar Defense’ Category
Aug 11
2017

Supreme Court to Decide Whether Prosecutors Can Use Pleas to Skirt Constitution

While the endless portrayal of jury trials in media might indicate otherwise, trials are actually quite rare in the U.S. criminal justice system. With 97% of federal cases ending in pleas, the Atticus Finch conception of American justice has been largely confined to books.

Ordinarily, when an accused enters into a plea agreement, he waives his right to appeal his conviction—otherwise, future appeals could require as much effort as the trial that prosecutors had hoped to avoid.  But it is not clear what happens when there is a challenge to the constitutionality of the statute of conviction itself. The Supreme Court will be answering this question next fall because Rodney Class chose the wrong parking spot.

On a visit to the U.S. Capitol, Class found uncharacteristically great parking in a gateless lot close to his destination.  Class didn’t see any signs restricting parking, so he drove straight into the lot to claim a space. When Class returned to his car, he found it surrounded by Capitol Police officers who had noticed a knife and holster in his car and suspected him of bringing a firearm onto Capitol grounds, which is prohibited by federal law. Class was surprised to learn that the unmarked lot was on the Capitol grounds, but freely admitted that he had lawfully owned firearms stored in his locked car.

Class was arrested and charged with possessing firearms on Capitol grounds—the same law that prohibits an individual from carrying even a licensed firearm on a Capitol tour or into her Congressman’s office.

Believing that his arrest violated his Second Amendment and Due Process rights, Class filed numerous motions to dismiss the case, arguing that he never had notice that he was on Capitol grounds and that prohibiting him from possessing properly stored weapons in his car was unconstitutional.   The trial court rejected these arguments and set Class’s case for trial.

Class did not appear for his trial but, instead, entered into a last-minute plea acknowledging the facts claimed by the government.  He continued to maintain that he had lawfully possessed firearms in his parked car on what he only later discovered to be Capitol grounds.

Immediately after the plea, Class appealed his conviction to the D.C. Circuit, arguing that the prohibition against firearms on Capitol grounds was unconstitutional both on its face and as applied to him even under the facts admitted in his plea. The D.C. Circuit affirmed his conviction without considering the merits of his argument, holding that Class waived any constitutional challenges the moment he struck a deal with the prosecutor and pled guilty. Although the case was simple and the D.C. Circuit’s opinion extremely short, the Supreme Court has agreed to weigh in and decide whether entering a plea can deprive a defendant in Class’s position to argue that the statute underlying that plea is, itself, unconstitutional.

Class has some support for his position.  The Supreme Court has previously ruled that a defendant who pleads guilty can still appeal his conviction on jurisdictional or double-jeopardy grounds.  But it is not clear whether there is a broader right to contest the constitutionality of a conviction based on a plea.

Even if the Court does rule in Class’s favor, there could still be a potential loophole if prosecutors can still insert an express waiver of rights into future plea agreements. The existence of this loophole will depend on whether the Court rules that a right to challenge a statute of conviction is a non-waivable right. In Menna v. New York (1975), the Supreme Court appeared to hold that the right to raise a double-jeopardy challenge to a plea cannot be waived because it goes to the very heart of whether that defendant could be brought before the court in the first place. We are hopeful that the Court will rely on cases like Menna—and be clearer than it was then—to find that a right to appeal a statute’s constitutionality cannot be waived.

Because nearly all federal criminal cases end in guilty pleas—and because a defendant like Class who does not dispute any facts is unlikely to prevail at trial—this case raises fundamental questions about how the Constitution will protect criminal defendants.  Closing the door to appeals on constitutional grounds could leave overbroad laws—and overzealous prosecutors—almost entirely unchecked. But the fact that the Supreme Court has agreed to hear the case at all is promising, suggesting that it may preserve the ability of defendants to challenge unconstitutional laws even after entering a plea.

 *Alex Grayson is a Summer Intern at Ifrah Law and is a student at Clark University in Massachusetts.

Jul 21
2017

Why Banning Criminals from the Web Doesn’t Work

A few weeks ago, the Supreme Court issued a unanimous ruling in Packingham v. North Carolina, 137 S. Ct. 1730 (U.S. 2017) invalidating a state law outlawing registered sex offenders from accessing websites which could facilitate offender-minor direct communication.  While the majority opinion and concurrence seems grounded in, and specific to, sex offender restrictions, the underlying characterizations and beliefs about websites has far-reaching consequences for other criminal defendants in state or federal courts.

Lester Packingham pled guilty to having sex with a 13-year-old girl when he was 21.  Eight years after his conviction, Lester bragged on Facebook about a happy day in traffic court, using the screen name J.R. Gerrard, and exclaiming:

“Man God is Good!  How about I got so much favor they dismissed the ticket before court even started?  No fine, no court cost, no nothing spent…Praise be to GOD, WOW!  Thanks JESUS!”

Apparently offended by the concept that someone would celebrate dodging a speeding ticket with such religious fervor, a police officer tracked down court records, obtained a search warrant, and determined that “J.R.” was actually Lester Packingham.  Lester was soon convicted of illegally accessing a “commercial social networking Web site,” as broadly defined by the North Carolina legislature.

The Supreme Court reversed the conviction based on the First Amendment’s protection of free speech, with Justice Kennedy criticizing the unnecessarily broad prohibition on accessing social networking sites, which prevented sex offenders from accessing the “vast democratic forums of the Internet,” that serve as principal sources of information on things such as employment opportunities, current events, and unrestricted opinions or ideas that have no connection to criminal plans or potential victimization of children.  Justice Alito’s concurrence agreed with striking down the North Carolina statute, pointing out that the statute’s definition of social networking sites included websites such as Amazon, the Washington Post, and WebMD. However the concurrence emphasized that states could still draft narrower, and constitutionally valid restrictions because of their legitimate interest in thwarting recidivist sex offenders.

The most interesting part of this decision is its future.  Is it really possible for a state legislature to sufficiently narrow its sights on offender/child communication to the point where the law has its intended effect while still passing constitutional muster?  If there is a North American Man Boy Love Association (“NAMBLA”) version of Tinder or Match.com, then there may be a way to characterize the “social site” in a permissible and effective way.  However, like the ones for the Washington Post or Amazon, many websites allow for user IDs for the very point of communicating with other visitors to that site, even if simply editorializing on a Washington Post story.  While the ensuing communications may not be fairly called a “chat room,” they are close enough to a “bulletin board” to bring us right back into the perils of North Carolina’s now-invalidated law.

And what of the defendants facing internet restrictions for reasons other than molestation or child pornography violations?  There are numerous defendants who are bounced off the Internet as a condition of probation or supervised release because the internet was an instrumentality for their crimes.  This probation condition that imposes an Internet ban is often referred to as CIMP- the computer and Internet monitoring program. It is imposed for both crimes that cannot be committed without a computer and also the use of a computer to facilitate the commission of traditional crimes. Some common computer-assisted offenses in the federal system that don’t require a computer per se are securities and credit card fraud, network manipulation, and on-line gambling.

Packingham will make for an interesting argument when one of these defendants is brought before the judge on a violation of probation, and the courts may have to balance constitutional concerns with facts that are much more ominous than Lester’s happy day in traffic court.

Even without the constitutional concerns, a strict CIMP condition has problems with satisfying the three statutory sentencing purposes: adequate deterrence, protection of the public from further crimes, and rehabilitation of the defendant in the most effective manner, 18 U.S.C. § 3553(a)(2)(B)-(D). While a strict ban obviously satisfies the adequate deterrence and public protection purposes, it does not further the purpose of rehabilitation.  It can even frustrate the rehabilitation purpose because an unreasonably restrictive Internet ban often means that defendants are unable to comply and end up in violation of their probation conditions. For example, below are some sample probation conditions that are quite onerous and likely to result in a probation violation:

  • You must not possess and/or use computers (as defined in 18 U.S.C. § 1030(e)(1)) or other electronic communications or data storage devices or media.
  • You must not access the Internet.
  • You must not access the Internet except for reasons approved in advance by the probation officer.

Generally, the imposition of monitoring and access by probation of a defendant’s computer remains problematic in many cases because- like in the sample conditions listed above-  it imposes a greater deprivation of liberty than is reasonable necessary. This was acknowledged by the 10th Circuit, which stated as a matter of general principle that, “conditions imposing complete prohibitions on Internet use or use of Internet-capable devices will typically constitute greater deprivations of liberty than reasonably necessary, in violation of § 3583(d)(2).”  With constantly evolving technology and the Court’s balancing act as evidenced in Packingham, it is likely that additional similar cases will wind their way through the state and federal appellate courts this year. Meanwhile, we would advise counsel and defendants to vigorously push back against any imposition of a restriction on Internet access (whether via a CIMP condition or otherwise) and to impress upon the judge at sentencing that these conditions raise both constitutional concerns and sentencing policy concerns.

Jul 19
2017

You Can’t Run From Justice

Just last week, a Kentucky lawyer by the name of Eric Conn was sentenced to twelve years in prison by a federal judge for bribery and theft of government money.  Though similar sentences are doled out around the country on a daily basis, this was unique because the defendant was not even in the courtroom.  The notion that a judge could sentence a defendant in absentia is unusual, but it need not give rise to fears that any one of us may be judged guilty in a secret proceeding without warning.

In fact, sentencing Conn without him in the courtroom was so unusual that the judge issued a written opinion explaining why he did so.  The case started out typically enough.  Eric Conn had pleaded guilty to Social Security fraud and bribing a Social Security judge, and was set to be sentenced July 14.  As part of his plea deal, he agreed to testify against one of his co-defendants, and was allowed to remain out on bail subject to GPS monitoring while awaiting sentence.

But after entering his plea, things began to get complicated.  Conn simply disappeared, and his GPS monitor was found in a backpack by the side of a Kentucky highway.  Somebody claiming to be Conn made several calls to his lawyer and the press attempting to negotiate his return while trying to avoid the need to testify against his co-defendant.  But Conn simply could not be found.

When July 14 came and Conn still hadn’t turned up, the judge was in a difficult position.  The Federal Rules of Criminal Procedure require that a defendant be present for his own arraignment, trial, and sentencing.  This requirement comes from over a century of Supreme Court cases finding that it is “contrary to the dictates of humanity” to allow a criminal proceeding to go forward without the person whose conduct is being judged in the courtroom.  Those same procedural Rules also give a defendant a right to speak directly to the judge before he is sentenced, a right called “allocution” that has existed in the common law for hundreds of years.  Federal law also gives a defendant the right to see and respond to the information the court will use when sentencing him.

All of these rights combine to ensure that a defendant is treated fairly as an individual when he comes before the court.  He gets the chance to set the factual record straight.  He gets to look the sentencing judge in the eye, so that a judge cannot simply ignore the fact that a sentence will fall upon a real person.  And he gets to explain himself, apologize, or provide reasons why a harsh sentence is unnecessary or unfair.

Judges take these rights seriously.  When a defendant jumps bail and does not appear for sentencing, courts will usually delay the sentencing until the defendant’s appearance can be secured.  (Usually, an arrest warrant is issued and the defendant will eventually be brought back before the court in custody.)

Here, however, the court found that by fleeing and going into hiding, Conn had waived his important procedural rights and simply proceeded without him.  This is unusual, but it is actually permitted by the Federal Rules of Criminal Procedure: a defendant who enters a plea in a non-capital case and then “is voluntarily absent during sentencing” waives his right to appear before the court and to address the court at sentencing.  The judge also relied on cases from other courts that found that fleeing deprived Conn of his right to review the information the court would use at sentencing.

On the one hand, it makes logical sense that a defendant who jumps bail after being ordered to appear has given up his right to be present for further proceedings.  And federal procedural rules—as well as several courts—recognize that logic.

On the other, there is always some concern when a court proceeds without the parties present.  That is particularly the case where, as here, the court is dealing with a defendant who has fled his supervision.  That is because the Supreme Court has held that a defendant who is a fugitive cannot appeal his sentence under a doctrine called the “fugitive disentitlement doctrine.”  So even if Conn’s sentence was improper or illegal, there is no way for him to get relief for that error.

With all that in mind, Eric Conn’s case should not raise fears in the minds of most people that they could be sentenced to over a decade of prison without even being in the room.  Rather, it demonstrates the ways in which a defendant—even one with legal training—can do things that end up forfeiting crucial rights important procedural protections.

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About Ifrah Law

Crime in the Suites is authored by the Ifrah Law Firm, a Washington DC-based law firm specializing in the defense of government investigations and litigation. Our client base spans many regulated industries, particularly e-business, e-commerce, government contracts, gaming and healthcare.

Ifrah Law focuses on federal criminal defense, government contract defense and procurement, health care, and financial services litigation and fraud defense. Further, the firm's E-Commerce attorneys and internet marketing attorneys are leaders in internet advertising, data privacy, online fraud and abuse law, iGaming law.

The commentary and cases included in this blog are contributed by founding partner Jeff Ifrah, partners Michelle Cohen and George Calhoun, counsels Jeff Hamlin and Drew Barnholtz, and associates Rachel Hirsch, Nicole Kardell, Steven Eichorn, David Yellin, and Jessica Feil. These posts are edited by Jeff Ifrah. We look forward to hearing your thoughts and comments!

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