Appellate Law & Practice

CA1: Marriage fraud conviction affirmed

US v. Karim, No. 07-1210 (unpublished) affirms a conviction for conspiracy to commit marriage fraud, in violation of 18 U.S.C. § 371 over a sufficiency challenge.  The facts are strange, but it seems like the defendant got an ex-girlfriend to marry him via proxy in Texas, with his sister standing in for him.  The First explains that there is a "well-established legal principle that a conspiracy may be based on a tacit agreement shown from an implicit working relationship.”  Likewise, the government did a good enough job showing that the parties didn’t really want to establish a life together. 

CA1: Photographic exploitation of a minor with a twist: the federalization of sex.

US v. Ortiz-Graulau, No. 06-1768.  The First Affirms a conviction under 18 U.S.C. § 2251(a) (“exploiting a minor for the purpose of producing the photographs.”) There was a guilty plea to a 18 U.S.C. § 2252(a)(4)(B) (2000) (“exploiting a minor for the purpose of producing the photographs”) charge.  Here is the twist: the relationship between the “exploiter” and the “victim” was legal under local law (they were not married, and “permission” would have been required to have legally wed.  In fact, they lived together as a couple, and apparently took pictures of their activity as a couple.  She just happened to be quite young.  So, because this kind of relationship is completely alien to the judges and clerks of the First Circuit, it finds a away to affirm and send the guy to jail as a child exploiter for fifteen years.  (I put some important stuff about sentencing at the end.)

The defendant argues that the purpose of the photographs was not to “traffic in child pr0n” but rather to “memorialize their intimate relationship....” and it was unfair that he couldn’t tell the jury that his relationship was quite legal.  The First figures that because there was a big difference between the couple “38 versus 14... and the fact that Ortiz participated in some of the sexual contact and admitted to taking the photographs (or at least many of them), the jury could reasonably infer that it was Ortiz who instigated at least some of the conduct.”  Somehow I seriously doubt that the First would reach this issue if Ortiz was a “cougar” and the defendant was whatever you call a young man that chases older women.  Is that a "Cougee?"  (You know.. like "donor" and "donee"?)

The First then keeps saying that at least some of their conduct wasn’t really “intimate” (in the sense that people that like each other were “intimate”) but rather at least some of it was conducted in order to take pictures of it and a “a jury could infer that at least some of the sexual conduct occurred in order to make a depiction of it.”  Of course a jury could infer that: the jury wasn’t told that their relationship was legal under local law.

I'm just getting started.  Keep reading.

CA1: First bends a bit to affirm a child pr0n conviction

US v. Wilder, No. 06-2213.  This is a child pr0n conviction.  The first issue is whether the search warrant affidavit was based on stale evidence.  The District Court said it wasn’t stale, even though the affidavit only showed that he downloaded pr0n.  But, I guess everyone gets to “infer” that if one downloads things, they keep them. 

Applying United States v. Rodriguez-Pacheco, 475 F.3d 434, 439 (1st Cir. 2007) (our coverage here), the First says the government doesn’t need expert testimony to provide that “the children were real” and not computer-generated.  Judge Stahl disagrees with this part of the opinion, and says that the First is ignoring Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), and says that “The logic of adopting this rather odd assumption about the dynamics of the child pornography market as a rationale for concluding that the child in any given picture is unlikely to be virtual rather than real is questionable at best.”  But, Stahl is missing the point: the First WANTS to get caught up in the child pr0n hysteria.  People like it that way.  Whatever the case, Stahl figures that there was expert testimony on whether they were real children.

Then the First says it is up to the jury to determine whether the pictures actually depict “sexually explicit conduct.”  However, it is unclear what the minimum the government would need to introduce would be.

Regarding the “knowing” element of “receipt” of pr0n, the First says that “there was ample evidence of what he was looking for” and distinguishes it from case where people get a big ol’ barrel of pr0n (some legal and some illegal).

Regarding the “knowing” element of “possession” the First jumps over the issue of whether he preserved his argument and concludes that based on the “opinion” testimony of two experts he “knowingly” saved pictures into a certain place.

CA1: all the crimes involved in using a stolen social security card to get public housing

US v. Hererra-Martinez, No. 07-1363.  An undocumented immigrant got low income housing using someone else’s ID card.  She was charged with:

• use of another's Social Security number, 42 U.S.C. § 408(a)(7)(B)
• knowingly converting public money or property, 18 U.S.C. § 641
• aggravated identity theft, 18 U.S.C. § 1028A

As to 42 U.S.C. § 408(a)(7)(B), the First says people can be convicted of obtaining benefits besides social security.

As to 18 U.S.C. § 641, the First says that there is no “asportation” requirement built into the statue, and the government need not prove actual loss, and HUD dollars are government property.

CA1: another false statements to gun dealers case

US v. Whitney, No. 07-1934. This is another 18 U.S.C. § 922(a)(6) (false statement to a gun dealer) case. The big question is whether the jury was properly instructed on the “willfulness” element. In this case, the defendant was not only under some restraining order, but he had been previous arrested for violating that order. Relying on United   States v. Edgerton, 510 F.3d 54, 57 (1st Cir. 2007) (our coverage here), the First says that no “willful blindness” charge to the jury was necessary and cites a few other cases for support.

Finally, it wasn’t an abuse of discretion to admit the earlier arrest, as it showed knowledge of the order.

CA1: A cache problem

US v. Morales Aldahondo, No. 06-2533. 

See the comments and this post for correction of some errors.

In a child pr0n case, the First hold that a Franks hearing regarding the staleness (three years) of material obtained reached an acceptable conclusion.  There is a little problem with the Court’s logic.  Look at this paragraph, complete with cites:

As earlier recounted, both the warrant application before the magistrate and the testimony presented to the district judge provided considerable support for the government's position that customers of child pornography sites do not quickly dispose of their cache. This is not a new revelation. See Ricciardelli, 998 F.2d at 12 n.4 [(1st Cir. 1993)]("[H]istory teaches that collectors prefer not to dispose of their dross, typically retaining obscene materials for years.”). Accord, e.g., United States v. Irving, 452 F.3d 110 (2d Cir. 2006) (two years); United States v. Riccardi, 405 F.3d 852 (10th Cir. 2005) (five years).

A cache is different than a collection.  A “cache” in cyber-speak is a portion of a hard drive that keeps images in case you want to view them again.  While most users know how to delete their cache (usually to free up space), most users do not use the cache as a means to access images, as the computer will likely delete them when it figures it needs more space. 

Moreover, most users have little or no control over what goes into their cache. If you go to a website, whatever pictures there will be in your cache.   Making this a bit more complicated is the fact that there is an affirmative defense under 18 USC 2252(c), for someone that inadvertently comes across an “illegal” image to destroy it. Most people would figure that they never “had” an image in the first place, so they have complied with 2252 by simply not looking at the webpage anymore.

Whatever the case, the First concludes that “ In our view, the testimony of the government’s knowledgeable witness, combined with the weight of authority, defeats appellant's staleness argument. Thus the district court did not err when it denied Morales's motion to suppress.”  It seems that the First is confusing human “cache” of things with a computer’s “cache” of images.  Maybe the First didn’t understand this, or maybe they are just reaching to help the government.

Finally, the First says it wasn’t an abuse of discretion to let the jury see some of the photos.

CA1: FRCrimP 35 is jurisdictional, and tax cheat issues

US v. Griffin, Nos. 07-1475, 07-1477. This is cross-appeal of a tax case under 26 U.S.C. § 7206(1) (false income tax return) by someone that made lots of money in multi-level marketing, but said she didn’t make that much.  The defendant initially got 27 months, then was resentenced to 21 months after Cunningham v. California, 127 S. Ct. 856 (2007).  The government wins, and the older sentence is ordered to be reinstated, because the District Court didn’t have jurisdiction under Federal Rule of Criminal Procedure 35(a) (seven day limit on sentence corrections) and rejects the idea that Eberhart v. United States, 546 U.S. 12 (2005) makes this rule non-jurisdictional.  As I have said many times before, I have little tolerance for tax cheats. I think they are worse than sex offenders.  Therefore, my sympathies will generally be with the government in these cases.

Keep reading if you care about “willfulness” and all that stuff that comes up in tax fraud cases.

CA1: another “in furtherance” affirmance ending with an opaque sentencing discussion

US v. Rosado, No. 07-1465 (unpublished) affirms a conviction for distributing “cocaine base.”  The First turns back a sufficiency challenge saying that of course a jury could infer that someone knew how much drugs were in a car.  It also concludes that of course a jury could conclude that someone that resists arrest is as knowledge of guilt (as opposed to a legitimate fear of being framed). And, of course, the jury could infer that “Eight Balls” indicated distributive intent.

But then it strays into bending territory.  The First says that because“the evidence showed that both guns were loaded and located in close proximity to the defendant and to the drugs and therefore could easily have been used to resist any effort, by the police or others” that a jury could conclude that the guns were possessed “in furtherance” of his drug activities.  I mean, what gives, why does the First even bother saying that “mere presence” of a gun isn’t “in furtherance” of a crime, but then it always concludes that all guns are “in furtherance” of drug business.

Likewise, objections to sentencing (based on what seems to be judicial notice of what crack looks like) are turned away.  A reasonableness challenge fails, as his long sentence was still below the guidelines.  It concludes by saying “To the extent that defendant quibbles with the weight afforded to the guidelines as opposed to other factors, such balancing, absent abuse of its discretion, is for the district court.”  So does that mean that weight afforded the guidelines is now a matter of “discretion” as opposed to “reasonableness.”?

CA1: guns+drugs, in criminal law, do mix (and defendants lose)

US v. Marin, No. 06-1912.  This is a 18 U.S.C.§ 924(c) (firearm “in furtherance of drug trafficking” conviction).  Now, in light of Heller, the law might be different.  There was a gun in the bedroom, but nobody saw him carry it or use it to buy drugs.  Despite the need for certainty in criminal law, the First has no problem saying   The "’in furtherance of’ element does not have a settled, inelastic, definition.”  Got it.  So it means whatever a court reviewing a conviction say it means regardless of what the jury thought it means.  The First seems to stretch to say that because the gun was in the bedroom, it could be easily accessed at night, and therefore, the jury could have inferred that he had it to protect his drugs.  But, this doesn’t end the bending.  A DEA agent said that it “was obvious” why he had the gun and therefore the agent didn’t ask the defendant why.  The defendant says this violates FRE 702, but the First says that on redirect the government managed to turn it into something other than expert testimony.

A bunch of stuff was found in the defendant’s home.  All of it came in despite FRE 404 objections.  The most notable is the reference to “Scarface” memorabilia, but the First says that the defense opened the door for that.  Secondly, an incident with a billyclub isn’t too prejudicial, becuase it shows what the defendant would have done to keep up his drug trade

CA1: perhaps the MDLEA is constitutional

USA v. Vilches-Navarrete, 06-1942.  This is another high-seas drug stop under the  Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. § 70503.  As to the constitutionality of the MDLEA, Torruella says that issue can be avoided under the doctrine of harmless error, and others say it must be addressed.  Under this logic, the MDLEA’s provisions that appear to put the question of jurisdiction (of capture) solely in the hands of the judge were correctly construed to require a jury instruction tell the jury not to worry about. Lynch and Howward says that under McMillan v. Pennsylvania, 477 U.S. 79, 86 (1986), the MDLEA is constitutional, and that the place where the vessel is captured is not an element.  Unfortunately, because of this fractured opinion, this fairly interesting dispute isn’t going to be properly vetted, and because most people want to decide the issue on political grounds, nobody is going to seriously analyze the issue of “what is jurisdiction.” 

Somewhat more disturbing, is the comfort with which the court is able to say that non-resident aliens in international waters have no Fourth Amendment rights.  (Of course, this does mean that Americans in international waters DO have such rights.)  And, even if they did apply, the plurality says that the objections failed on standing grounds.  And, even the defendant had an expectation of privacy, it wasn’t objectively reasonable. And, whatever the case, the USCG appears to have statutory authority (even if it reflags a British vessel). 

Regarding a 365 month sentence, the First says that it is reasonable enough, especially in view of how the District Court didn’t count a bunch of prior convictions.

Sufficiency challenges are pretty much routine.