Appellate Law & Practice

CA1: It’s official. Everything is mail fraud.

US v. Hebshie, 07-2339 (12/4/08). This is a federal arson case. As you know, the framers of the constitution really envisioned the federal government prosecuting insurance fraud (or, as they say, “mail fraud”). The first says that pretty much any sort of mailing in connection with collecting on an insurance policy where the defendant is up to know good is mail fraud. (Even if it is just “proof of loss.”). Even letters that expressly said it wasn’t “conceding” liability are in furtherance of a mail fraud scheme. I guess everything is now mail fraud.

CA1: proper punishment for a stalker that refused to retain a lawyer before not paying taxes

USA v. Steirhoff, 08-1183.  Selya tries to be dramatic.  He says “The tale of how the stalker became the stalked follows.”  Anyway, the defendant seems like a bad guy because he talked to the police without a lawyer.  And he had about $100,000 in cash lying around.  A true American would have the money in CDs or municipal bonds, and only terrorists and furries talk to the police without lawyers.  Just like people that try and avoid taxation on their interest income, this defendant said that he didn’t pay taxes and didn’t trust banks.  I hate him already. 

Anyway, the state called the IRS, and the IRS started investigating him and found out that he wasn’t pulling his weight tax-wise. 

Anyway, the legal issues are fairly straight-forward, especially when the defendant is a simpleton.  This is absolutely no evidence that he retained a tax lawyer, and, as I said he is the kind of America-hating person that talks to the cops and consents to a search without a lawyer.

So, it should come as no surprise that a search of a briefcase is held to be within the scope of the consent this idiot gave the police.  If he was a real American he would not have given the consent, and certainly not on boilerplate forms that say “letters, papers, or other property."  The defendant meekly asserted that he meant to consent only to a search of part of his computer for poetry.  Ha ha.  No cop wants to look for poetry.  All they want are looking for his guns, pr0n and cash.  Obviously, because Selya sees that this guy isn’t really acting like an American, he sides with the cops.  As he usually does.  He adds, “A police officer is not required to take a suspect's statements concerning the whereabouts of incriminating evidence at face value.”  See, if the defendant was a true American he would have not made a statement.

He also makes some BS argument that he wasn’t subject to the tax code.  Obviously this fails.  There was no evidence that he had retained a law firm to write him an opinion letter.

There is an interesting Cheek issue regarding “willfullness.”  And, in this case, since the defendant had a bunch of aliases, it was enough to infer that he was willfully not paying taxes. 

Also, the Selya says that a “summary witness” was okay.  Selya let’s it pass by saying that the witness was just adding numbers up.

And, after affirming the sentence, Selya sends the guy that couldn’t be bothered to retain counsel until after he was arrested to jail by saying “For aught that appears, the defendant was fairly tried, justly convicted, and lawfully sentenced.”

CA1: surprise! creating false invoices to defraud Uncle Sam is corrupt

U.S. v. Marek, No. 07-2437 (11/26/08). This is sort of interesting.  There was an audit by the IRS.  The defendants appeared to participate in the audit in good faith.  Problem was that they went so far as to procure back-dated invoices from vendors that would explain why some amounts paid were expenses rather than under-the-table untaxed salaries.  This satisfied the agents, who were not told that these were recreations.  The defendants were indicted under a “Klein Conspiracy” theory under 26 U.S.C. § 7212(a).  The First Circuit says:

...the plain language of the statute supports an interpretation requiring proof that the defendant 1) corruptly, 2) endeavored, 3) to obstruct or impede the due administration of the Internal Revenue laws. See 26 U.S.C. § 7212(a); see, e.g., United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Supplying false documents knowing that the documents will be used to deceive the IRS during an audit is a quintessential violation of the statute.

The First seems at a loss to explain why went wrong was bad, especially when it comes to intent.  But, the First says that a businessman would have had some suspicions that creating invoices out of thin-air was okay.

I ain’t losing sleep about this.  He didn’t get a long prison term, and his whole conspiracy seems to be to defraud the government of employment taxes which ultimately hurt his employees.

CA1: Fifteen year mandatory minimum for guy in wheelchair trying to produce child pr0n okay

US v. Polk, No. 07-2425 asks the question of whether the “ifteen-year mandatory minimum term of imprisonment under 18 U.S.C. § 2251(e)” violates the Eighth.  Selya writes the opinion so you can tell where it is going.  This is a pretty typical “seduction of cop posing as teenage girl” case.  The strange wrinkle is that the defendant was in a wheelchair and argues that he is harmless.  He was sentenced above the mandatory minimum, but the First explains that “The possibility exists that, but for the mandatory minimum, the GSR would have been more modest and the defendant's sentence would, accordingly, have been less.”

Selya says that “stern” penalties are acceptable.  Then Selya does some non-judging and holds that “Given the deference that courts owe to legislative judgments in the area of crime and punishment, it is predictable that most efforts to demonstrate gross disproportionality will fail.”  Whatever.  Anyway, Selya says that the sentence isn’t grossly disproportionate because, “In Congress's view — and that is the view that matters most — the production of child pornography is a profoundly serious matter. That is a reasonable value judgment, well within Congress's prerogative to make. [United States v. Saccoccia, 58 F.3d 754, 788 (1st Cir. 1995]. Therefore, Congress was entitled to punish the offense heavily.”  Moreover, the fact that it was an “attempt” doesn’t matter.

CA1: speedy trial act and conspiracy counts

US v. Grullon. No. 07-1982 (10/24/08).  In this case, the First turns back a sufficiency challenge even though all the testimony came from the defendant’s “confederates.”  Also, the first says that interpreting “drug talk” to be, in fact “drug talk” was for the jury.

But, there is an actual legal issue in there.  There was a drug transaction that was dismissed for violation of the Speedy Trial Act (because an indictment wasn’t filed quickly enough).  But the government wanted to rely on that transaction as part of the conspiracy charge.  The First concludes “the statute says nothing about barring the institution of a new charge for a different offense based on some or all of the underlying transaction and certainly nothing about barring the use of pertinent evidence of the dismissed charge so far as it might prove the new charge.” 

At the end of it, is an interesting prosecutorial misconduct issue.  The AUSA said that jurors should "follow [their] oath ... [and] find the defendant guilty . . . because it is the right thing to do."  The First “previously told prosecutors not to use such language.”  But, the First says that this was probably harmless, so the message is clear: prosecutors are free to use such language.  So, a green light is given.

Also, some anti-lawyer jokes were found in the jury room.  No evidentiary hearing was held on what the jurors were thinking.  The First says that this was okay. 

CA1: no contempt for attorney that disclosed grand jury materials that he provided

In Re: Grand Jury (Islamic Investment Company of the Gulf (Bahamas) Limited), No. 07-2353 (10/10/08 -- reissued for obvious reasons).  This is an interesting case.  Although some Republicans are trying to scare us with the use of the word “Islamic” or “Muslim” (some of the people writing these applause lines are lawyers who have Muslim friends but just like trolling the “lay shit”).  So, to all you Muslims out there, I say this: don’t take it personally.  Americans hate people more on the basis of their class than religion.  For some reason, everyone likes Bahamians.  Anyway, where was I?

Oh, this case is interesting because it involves the power of a District Court to hold someone in contempt.  Essentially, IICG was the subject of grand jury proceedings.  The AUSA started communicating with a lawyer for a former employer that had sued them, and the lawyer told the AUSA about the state court proceedings and gave the AUSA copies of various discovery orders and pleadings.  But the lawyer didn’t stop there.  He gave the documents to various members of the press.  IICG pointed to the local rule that said that everything provided to the grand jury is presumptively under seal, and said that the lawyer should be held in contempt.  The District Court refused (in a long opinion).  IICG says that the trial court didn’t understand that it had the inherent power to hold the lawyer in contempt.  (The District Court concluded that the lawyer wasn’t subject to any of the local rules regarding grand jury secrecy.)

The First says that the lawyer didn’t know that the documents he provided were sealed in the first place, and besides this lawyer isn’t a member of the Massachusetts bar and lacks a reason to know that he was violating a rule.

CA1: No 5th or 6th problem in trickery case

US v. Boskic, No. 07-1188.  This is a big case under the Fifth and Sixth amendments.  The First sides with the government.  The defendant, a Bosnian, was “guilty on two counts of making false statements in his applications for refugee status and permanent residency in the United States. See 18 U.S.C. § 1546."  Essentially, he is claimed to have lied on his application for refugee status by omitting the fact that he was involved in killing a lot of people when he was in the military. 

You can find more of this post downtown.

CA1: jury can always draw inferences against poor people

US v. Morales-Machuca, Nos. 06-1283, 07-1001 (10/17/08).  The underlying facts involve a couple of botched armored car robberies.  Most of it comes down to an unrenewed Rule 29 motion.  The Firsts gets in a few shots in the war on poverty by explaining that it is sufficient to show that someone was involved in a robbery if they are the kind of guy that earns minimum wage (a truly dishonorable act), yet had enough money to buy cars and stuff (a pro-American act.)  Besides the class-based stuff there were some vague statements from the other defendants. Most of the other points are resolved by saying that the jury “could” have drawn an inference in the government’s favor and by saying that the defendant didn’t develop his argument. 

Even on the sentencing, there really isn’t much here.

CA1: no reasonable expectation of privacy in unpaid storage locker

US v. Lnu, Nos. 07-1780, 07-2020 (10/10/08).  This is a social security card fraud case.  The defendant was convicted under 42 U.S.C. § 408(a)(6).  However, the underlying question revolves around whether the cops could search a storage locker that he had not made payments upon.  The First focuses on the fact that the owner of the self-storage place had a lien on the property under state law.

The First says that some parts of the closing argument were not misconduct because, on the facts, they were supported by the evidence.  Likewise, the defendant claims that he was denied his right to testify but testimony from his lawyer says that he was so adequately informed.

CA1: First bends to help government prove negative in antique gun registration case

US v. Giambro, No. 08-1044 affirms a conviction for possessing an antique gun.  (He was acquitted of a number of state charges.)

The least interesting issue is under 26 U.S.C. § 5861(d), where the court holds that the defendant need not have specific knowledge of the registration requirement, but just knowledge of the statutory elements of the guns subject to the registration requirements.

More interesting is the admission of the ATF’s “Certificates of Nonexistence” of a registration record.  The maker of the certificate testified.  The First’s analysis isn’t that satisfactory. It basically says “other circuits have upheld their use” even though there used to be problems.

Finally, and without much analysis, the First says that it was fine for the District Court to exclude the testimony of an expert witness that had done some statistical analysis on the reliability of the ATF’s system of gun registration.  Because the First speaks in broad, general terms (and throws around words like “Daubert,” it doesn’t seem like it was taking this issue seriously.