Supplemental Jurisdiction

Criminal Friday

Criminal Friday has been a long-time commin'.

Today's case is United States v. Hinton, No. 06-4017 (8th Cir. June 7, 2007). Factually, there isn't anything remarkable about the case, except that it involves a horrible person who was convicted of receipt of child pornography. Unfortunately the opinion does not detail the defendant's ultimate sentence; we can only hope it was for a good long while (although whatever it was, the judge sentenced him near the low end of the Guidelines range).

No, the real point is of this post is to examine Hinton's argument that after Booker, the Guidelines, having become advisory instead of mandatory, are now simply one factor of several a district court must consider under the mandate of 18 U.S.C. § 3553(a). But, because the Eighth Circuit has held that the Guidelines range determined by the district court is "presumptively reasonable," this creates "a disproportionate emphasis" on one of those § 3553(a) factors. Obviously this panel of Eighth Circuit rejects this argument, as it must until the Circuit en banc or the Supreme Court says otherwise.

But, Hinton does raise a valid point, which I think is becoming problematic in many circuits. Under Booker, the test for whether a sentence is appropriate is reasonableness. Reasonableness is governed by § 3553(a). However, prior to considering the factors in § 3553(a), the district court calculates the Guidelines range, because it is still advisory. Many, if not most, circuits have held that this first step, if calculated properly, is the "presumptively reasonable" guidelines range. As long as the district court sentences a defendant in that range, it then only has to go through the motions in considering the other § 3553(a) factors because the circuit court will uphold it. Most circuits, having such a presumption, aren't really going to analyze for reasonableness beyond that once established. I'd say there might, at best, be one or two cases in the entire country where a circuit court held sentence within the Guidelines range to be otherwise unreasonable under § 3553(a).

The result is that appeals courts heavily scrutinize sentences outside of the Guidelines range. The further it gets from the range, the less likely the court is to find it reasonable. Some courts engage in discussion about certain percentages below the calculated range. In my opinion, this reasoning risks being unconstitutional. It is simply creating a new mandatory sentencing Guidelines system, only with a judicially-created broadened range. It is also a system that encourages adhering the old Guidelines. As a result, I don't think much has changed in criminal sentencing after Booker.

(A topic for another day is the fact that most sentences above the range are upheld, no matter how many more months are added, while there is a much narrower acceptable range to go below).

Anyway, also noted by defendant is that the Supreme Court granted cert on this issue in Rita v. United States, on appeal from the Fourth Circuit. (Briefing can be found here.) Although oral arguments were in February the court hasn't come down with a decision yet (probably any Monday now). Next Friday I'll analyze the briefs and give some odds.

Criminal Friday

Because I've been pretty busy lately, I haven't really been providing the witty and astonishingly refreshing content you've come to expect here at SJ. Thus, this will be a more old-fashioned Criminal Friday post. Mmmm, Old Fashions.

Today's case is United States v. Tjaden, No. 06-1333 (8th Cir. Jan. 16, 2007). Lynn Warren Tjaden was charged with engaging in a check-kiting scheme. He agreed to a plea deal with the government, and in exchange the government agreed to a 3-level reduction in his offense level based on acceptance of responsibility (under U.S.S.G. 3E1.1). Part of this deal, however, was that Tjaden could not continue to commit any acts inconsistent with his acceptance of responsibility.

So, Tjaden set about accepting his responsibility, admitting his wrongful conduct. He even tried to demonstrate his acceptance of responsibility by starting to repay the bank he cheated. Turns out, though, that Tjaden was funding his repayment plan with money he'd received through a new fraudulent scheme. That's right people: The man, in order to show how sorry he was for defrauding the bank, defrauded some other poor schmo to get the money.

Anyway, as you might expect, the government withdrew its agreement to the 3-level reduction for acceptance of responsibility. The district court, now calculating his Sentencing Guidelines range to be 41-51 months, then varied upward, slapping Tjaden with a 72 month sentence! That's almost an additional two years over the top of the Guidelines range. Double-whammy! As his sentence was handed down, I'm sure his attorney leaned over to him and whispered: "Smooth move, exlax." On appeal, the court had no problem affirming this decision based on a clearly erroneous standard.

And that, my friends, is the lesson: If you are attempting to take responsibility for your fraudulent acts, do not engage in more fraud. See, two wrongs don't make a right. I learned that, like, when I was five. You've got no excuse. Also, fun fact for all you would-be criminals out there: Booker and Almendarez-Torres are still good law, and the court is completely free to call you on your dumbassitude to sentence you above the now advisory Guidelines range.

Criminal Friday

Well, this should be criminal, anyway.  Currently playing on MTV Hits:

Criminal Friday

Today's story comes from our crazy, fondue loving neighbors to the north:

MONTREAL -- A woman who used fondue fuel to set her boyfriend's penis on fire will spend the holidays in jail.

Police arrested Andree Rene, 43, last week after she failed to turn up in court for sentencing arguments on a charge of aggravated assault. She was ordered yesterday to remain in custody until a Jan. 8 sentencing hearing.

In April 2001, Rene's boyfriend went to bed following a heated argument between them. As he snoozed, Rene doused the man's private parts with fuel and set them aflame. The 52-year-old spent a month in hospital after suffering third-degree burns in the pelvic area and on his chest.

Do you think the reporter intended to make a joke when he/she described it as a "heated argument?"  Either way, I'm pretty sure I've lost all respect I had for the Canadian press corp.  (Truth be told, up until reading this article I had never given thought to the Canadian press corp, let alone develop some amount of respect for it, so I guess it didn't have much to lose.)

Obviously I can't ever sanction this kind of response.  A man's junk is his treasure.  And while I've always thought it would be kind of cool, in theory, to get some hot rod flames (or even a sweet-ass racing strip) tattooed on it, it certainly isn't cool for it to actually be on fire.  Not cool at all, dude.  Well, I take that back:  At first it might look awesome, but after about a second, it is going to start to smart.  A lot.

My favorite quote in this whole article some from the prosecuting attorney:

"Sentencing is not revenge (but) at this point we do not have a common recommendation," Lariviere said, adding negotiations were continuing with Rene's lawyer.

Even the prosecutor is like "Damn, usually I'm all for rehabilitation, but this woman be too crazy for that shit."

Criminal Friday

This video was submitted by Bub. It involves a drunk guy breaking into a package store. There are a couple of different versions of this out there, but I chose the one with the funny soundtrack:

If you want commentary to go along with the video, go here.

BTW, sorry fo the lack of posts but it has been crazy busy around here. However, it is rarely ever too busy for Criminal Friday (or Ninja Wednesday for that matter).

Criminal Friday

In United States v. McCourt, No. 06-1018, slip op. (8th Cir. Nov. 24, 2006), Michael Shawn McCourt appeals his conviction on child pornography charges. Most of his arguments are evidentary in nature, but he does raise one interesting--and completely unconvincing--argument related to the court's denial of his theory-of-defense jury instruction.

McCourt, you see, loved to surf the internets looking for "young" porn. Using unnamed "peer-to-peer" software (I'm looking at you Kazaa), he traded various files with his filthy comrades. Eventually he and his activities were discovered by an undercover detective monitoring a certain chatroom entitled "100%PRETEENGIRLSEXPICS." Despite the chatroom's title and subject matter, McCourt would later argue that while he was into "young" girls, he didn't actually intend to down load child porn, never looked at the videos, and if he did ever see child porn on his computer, would immediately delete the files.

At trial, McCourt and his attorney came up with a brilliant(!) defense: A hacker must have uploaded the child porn files onto his computer without his knowledge. (Brilliant!) Fair enough, that's as good a defense as any when you're guilty, I guess. But then they take this defense one step further: McCourt argued that the government had the burden to prove the identity of the person who uploaded the files beyond a reasonable doubt. If you think about it, this defense is pure genius. Basically, the defense was trying to convince the judge and jury that the government had to prove that the one-armed hacker wasn't responsible.

Unfortunately for McCourt, the government only had to prove that he knowingly possessed child porn. And, as the Eighth Circuit recognized, "[T]he identity of the person who uploaded the files onto McCourt's computer is not relevant to whether McCourt knowingly possessed the files." Thus, McCourt will now be spending 10 years in federal prison, where even hardened criminals consider pedophiles disgusting and totally shiv-worthy.

On another note, Kansas City beat Denver last night, although not by the score I predicted (I attribute this mostly to Joe Montana not playing, apparently having retired 11+ years ago). Still, mark it up as another successful prediction by yours truely.

Finally, within the next couple of days, I'm going reveal one or two of my "blog crushes." I'm hoping this will go better than my real-life crushes. I could do without the awkward silences and permanent restraining orders.

It all comes together

I was going to post this news story for Ninja Wednesday, but then I realized it could also be a Criminal Friday topic.  My brilliant compromise:  Post it on Thursday!

From the story:

Gonzalez and Sevilla are accused of dressing like ninjas in black clothing, masks and gloves and storming the bank shortly after a 9 a.m. armored car delivery. They fled the bank with $450,000. No one was injured.

First of all,you can't really blame the guy for dressing up like a ninja to rob a bank.  What teller isn't going to be scared shitless when he sees a ninja suddenly appear at his window, sword drawn?  Also, the fact that you could use smoke bombs to mask your escape is almost incentive enough to become a ninja thief.

On the other hand, if not executed properly, acting like a ninja in a bank is going to draw a lot of attention.  And not in a good way, like the attention Mr. Monopoly attracts when he enters a bank.

Criminal Friday

Awhile back, a couple of teenagers tried to rob magician David Copperfield. However, Copperfield turned the tables, using his magician's trickery to fool the mugger into believing he had empty pockets. In fact, though, Copperfield had a wallet, cell phone, and passport. (Passport?)

Anyway, one of the kids just pled guilty. Really, that's the only thing he could do, considering he got freakin' owned by David Copperfield. Other people owned by Copperfield: Miami retirees and Claudia Schiffer.

Which reminds me, G.O.B. Blueth was awesome.

Criminal Friday

Today, Criminal Friday looks at an interesting statute I came across the other day:

Colo. Rev. Stat. 18-6-103 Pretended Criminal Abortion.

1) Any person who intentionally pretends to end the real or apparent pregnancy of a woman by any means other than justified medical termination or birth commits pretended criminal abortion.

(2) Pretended criminal abortion is a class 5 felony, but if the woman dies as a result of the pretended criminal abortion, it is a class 2 felony.

At first I thought this was kind of weird. For example, what if you're acting out a play on-stage with a pregnant woman, who then, due to the script, pretends to have an abortion (her actually being pregnant is just a coincidence)? Do the police swarm the stage and haul the acting troupe away in a paddy wagon?

Google isn't really that helpful in figuring out 18-6-103's true intentions, although some pro-life websites offer the most likely explanation: It is another method by which to charge people who perform unlawful abortions. Nothing like repetitive and cummulative criminal charges to get the prosecutor's office all hot.

For further information on what constitutes a "justified medical termination," check out Colo. Rev. Stat. 18-6-101.

Criminal Friday

This is just an absolutely terrible story. It could also prompt a debate on whether enhancing a crime based on it being a "hate crime" is useful, effective or appropriate. I make no claim one way or the other, but beating someone with their own prosthetic leg is just heinous.

A high school senior was attacked over the weekend in Cape Girardeau by two teenagers, one of whom police said used the victim's own prosthetic leg against him. The attack occurred around 1 a.m. Sunday in the parking lot of an apartment complex at 921 Hackberry St., police spokesman Jason Selzer said.

Michael Williams, 18, was standing in the parking lot when a car pulled up with two teens inside. The teens got out and began harassing Williams, who is missing half his right arm and wears a prosthetic leg due to a birth defect.

"What's up, nubs?" one teen asked Williams, according to Selzer.

All Williams remembers is one of the accused attackers commenting that Williams wouldn't throw the first punch.

"The next thing I know I get blindsided in my right jaw and I black out," he said.

According to a probable-cause statement, Williams was punched in the face several times, and kicked in the ribs and face.

One attacker grabbed Williams' prosthetic leg and hit him with it, according to Selzer.

"What motivates someone to do that, I have no idea," he said.

Alexander S. Harris, 17, of 1204 Bloomfield St., was charged with felony third-degree assault.

The charge was classified as a hate crime because the assault was motivated by Williams' disability, according to the warrant. The classification makes what would otherwise be a misdemeanor a felony, assistant prosecuting attorney Jack Koester said.

The other teen, a 16-year-old boy, was cited into juvenile court for assault and curfew violation, according to Selzer.

Following the attack, witnesses took down the license plate of the vehicle in which the two teens fled. The vehicle was later spotted in town around 3 a.m. and the two were arrested, Selzer said.

Williams said he went to the hospital and received X-rays of his knees, chest, head and a CT scan. He suffered a swollen lip, jaw and neck but no broken bones.

He believes the attack was prompted by his disability.

"That's the only thing I can think of," Williams said, adding he knew one of the teens from school but did not know either of their names.

Harris, who was also charged with misdemeanor driving without a license, had bond set at $10,000.

This was the third attack this year in Cape Girardeau classified as a hate crime, Selzer said. Two other men were attacked in separate incidents because of their sexual preference.

Criminal Friday

Public defenders have a hard job: large case loads, difficult clients, low pay. In addition, they are often not given their due respect because of the misperception that people only become public defenders because they are poor attorneys. In my (admittedly limited) experience, many, if not most, PDs are very good lawyers who must frantically balance several pressing issues at once.

But then there are the schmucks that not only reinforce the stereotype, but take it one step further and make PDs look like psychos. That's where Clay Hummer comes in.

GARDEN CITY, Kan. - A public defender has been charged with harassing and stalking another attorney in Garden City, Attorney General Phill Kline said.

Clay F. Hummer, 36, is the chief public defender for the western Kansas region. He is charged with 69 counts arising from incidents between July 2 and Aug. 12.

The charges include five counts of criminal threat, one count of stalking, 44 counts of harassment by telephone, and 19 counts of violation of a stalking order. The name of the alleged victim was not released.

Hummer was arrested Aug. 18 and made his first appearance Thursday in Finney County District Court.

Finney County Attorney John Wheeler filed the charges but then asked Kline to prosecute because of potential conflicts of interest. Finney County District Court judges have recused themselves from all court proceedings in the case for the same reason.

Personally, I'm not sure there needs to be a "chief public defender for western Kansas." Seriously, only about 35 people live in that part of the state. That issue aside, however, man, what the hell was Hummer doing that he racked up 69 freaking counts of stalking in just over a month? Holy jeebus, it's like it was his job or something. Apparently, he forgot his real job was defending people in court, not breathing heavily into the telephone.

My question is: Do you think he'll go with a public defender?

Criminal Friday

My old co-workers were weird. There was a certain unhealthy obession with cats, and often "meow" was a proper response in conversation. So, imagine how our hearts sank when we found out not only was "meow" not a proper response, but might even be criminal:

Boy Charged For Meowing At Neighbor Lady

Family Gave Cat Away After Neighbor's Complaints

JEANNETTE, Pa. -- Meow. A Pennsylvania judge is being asked to decide whether that word is a harmless taunt or grounds for misdemeanor harassment. Police have charged a 14-year-old boy with that crime. Michael Loughner is accused of meowing whenever he sees his 78-year-old neighbor, Alexandria Carasia. The boy's family got rid of their cat after Carasia complained that it was using her flower garden as a litter box. Now, she said, the boy makes meowing sounds every time he sees her.

He said he's only meowed at her twice.

"I've had to put up with this for three years," Carasia said. "As I walk by, I see Michael and his mother. He got on the porch and hid behind the bamboo screen and starts meowing. If I don't make this stop now, they're going to keep doing this to me. I shouldn't have to worry about walking out of the house and being harassed by this young kid."

Loughner said that on July 23 he went out to hold his dog so it wouldn't leave the yard as Carasia walked by.

"She was walking through and she kept looking at us," he testified. "I grabbed the dog so it wouldn't leave the yard. When I put my head down, I meowed."

He said that was one of the two times he's ever meowed at the woman, the Pittsburgh Tribune Review reported.

"As she walked in front of the house, nothing was said," the boy's mother, Sally Loughner, told the court. "He stepped off the porch to make sure the dog didn't get out. As he reached down and got the dog, he said, 'Meow.' ... She said, 'Do you want me to call the cops again?' I said, 'Go ahead, he hasn't done anything wrong.'"

There is a history of disputes between the neighbors, according to the paper.

Sally Loughner told the court that she ended up sending her cat to live with family members so that she could "keep peace in the neighborhood."

Defense attorney David Martin Jr. asked that the case be dropped.

"This should never have been filed," Martin said. "This is not something that police should be wasting their time with or wasting the court's time."

The judge heard from both parties Tuesday. He decided to wait 90 days before ruling, saying he'll decide what to do after seeing how the boy and his neighbor get along in the meantime.

Criminal Friday

Let's say you're a meth dealer.  Obviously you'd be constantly worried about being caught by the police.  Thus, you might take certain precautions in order to avoid arrest.  Of course, being a meth dealer, you are also crazy as all get out.  That's why you've come up with the "Meth Rocket":

Drug dealers aren’t typically rocket scientists.

Then again, Missouri Highway Patrol Cpl. Tom Walley’s encounter with a pair of Kentucky men he stopped for speeding last summer didn’t turn out to be a typical drug bust.

Not after Walley opened the trunk of their 1990 Ford Thunderbird and a 4-foot rocket raised into an upright position.

Eight explosive charges at the base of the rocket were attached by wires to the cigarette lighter on the car’s dash. A flick of a switch from inside the car would have sent the rocket and its payload skyward.

“It was plugged in. It was ready to go,” Walley said Friday.

. . .

After unplugging the device, troopers found bags containing two pounds of methamphetamine inside the rocket.

These guys also had $12K in the glove compartment, which they tried to pass off as money they'd saved from their job as a Tyson's "chicken catcher."

There are a couple legal lessons to take away from this story, the first being Meth Rockets are not a good idea and offer substantial evidence of your guilt.  Second, while both these criminals and Jay Z are correct in that they don't have to give the police permission to search their car after a routine traffic stop, unfortunately for them it just means a minor reprieve until the drug sniffing dogs can arrive, at which point the police won't need their permission.  See Illinois v. Caballes, 543 U.S. 405 (2005) (holding that drug dog sniff outside of car after routine traffic stop does not violate Fourth Amendment).

By the way, this is the second time in three days I've linked to 99 Problems.

Criminal Friday

The UK Edition:

BEER-swilling Baywatch star David Hasselhoff was booted out of Wimbledon — because he was “steaming drunk”.

A guard led him from the tennis tournament’s grounds after a series of clashes with security staff.

FIRST, the 53-year-old actor had a blazing row outside Centre Court. Guards would not let him in because he did not have a valid ticket.

THEN he was banned from press and players’ bars as he tried to get another drink.

Hasselhoff, who has fought a long battle with booze, yelled at staff: “You should let me in. Do you know who I am? I’m The Hoff.”

The US star had his arm in a brace after severing a tendon in a hotel accident.

He was at Wimbledon on Monday with pal Michael Brandon, star of ’80s cop show Dempsey and Makepeace.  Brandon eventually bought him a Centre Court ticket to see champ Roger Federer.

Hasselhoff, who played TV lifeguard Mitch Buchanan from 1989 to 2000, then downed beer after beer and was later seen staggering arm-in-arm with Brandon.

Security chiefs ordered Hoff out. One guard said: “He was steaming drunk.”

First, I'd like to state how awesome the British media is:  It is pretty sweet to begin and end a story with the phrase "steaming drunk."  Next, who are these guards to deny The Hoff anything?  Once you've been put on notice that you're dealing with The Hoff, there is simply no excuse to fail giving into all of his demands.  The Hoff wants courtside tickets?  Done.  The Hoff wants to ride Roger Federer like a pony around Centre Court.  Giddy up. 

Finally, because I can't resist, another The Hoff and English tie-in:

H/T on the story to The Superficial.

Criminal Friday

Normally I make fun of stupid criminal acts here, but today I thought I would recognize the Founders of our country, who, had America lost her war for independence, would have been hung as criminals.  Thankfully, this is not the case and history considers them heroes instead.  Have a fun and safe weekend, everybody!
----------------------------------
Declaration of Independence

[Adopted in Congress 4 July 1776]

The Unanimous Declaration of the Thirteen United States of America

When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. — Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world.

He has refused his assent to laws, the most wholesome and necessary for the public good.

He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved representative houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining in the meantime exposed to all the dangers of invasion from without, and convulsions within.

He has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands.

He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers.

He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.

He has kept among us, in times of peace, standing armies without the consent of our legislature.

He has affected to render the military independent of and superior to civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation:

For quartering large bodies of armed troops among us:

For protecting them, by mock trial, from punishment for any murders which they should commit on the inhabitants of these states:

For cutting off our trade with all parts of the world:

For imposing taxes on us without our consent:

For depriving us in many cases, of the benefits of trial by jury:

For transporting us beyond seas to be tried for pretended offenses:

For abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, and enlarging its boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule in these colonies:

For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments:

For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated government here, by declaring us out of his protection and waging war against us.

He has plundered our seas, ravaged our coasts, burned our towns, and destroyed the lives of our people.

He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation and tyranny, already begun with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy of the head of a civilized nation.

He has constrained our fellow citizens taken captive on the high seas to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.

He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare, is undistinguished destruction of all ages, sexes and conditions.

In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

Nor have we been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. We must, therefore, acquiesce in the necessity, which denounces our separation, and hold them, as we hold the rest of mankind, enemies in war, in peace friends.

We, therefore, the representatives of the United States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and of right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full power to levey war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

Criminal Friday

You know, we spend a lot of time on Criminal Friday making fun of the criminals, but we shouldn't forget to also honor the brave men and women who apprehend these often very stupid criminals.  That's why I felt it necessary to link to this story:

The Kansas City Police Department gave awards to 30 employees Tuesday for work performed last year. Among those honored:

. . .

And seven officers for helping the suicidal man last summer. Officers Bryan Britten, Richard Burnette, Christopher Hayes, Donald Hubbard and Lloyd Mast searched a field for the bleeding man. Officers Robert Keith and Shane Roberts secured his home. After the officers found the man, Britten discovered the body part back at the house. Later, doctors successfully reattached the man’s penis.

I've never heard of a man attempting suicide by cutting of his peanoose before, but to each his own.  Nevertheless, congratulations to the police officers for going above and beyond the duty in retrieving the thing.  Of course, they're still clearly gay for touching another man's junk.

Criminal Friday, Part Deux

I just read this online, and it was so hilarious, I couldn't help but post it right away:

Victim scuttles robbery attempt with knives

Two men are recovering in separate hospitals today after being stabbed by a man they allegedly tried to rob Thursday night. Their abdominal wounds are not believed to be life-threatening.

The 10:30 p.m. incident occurred at 39th and Main streets.

The would-be robbery victim told police that he got off a city bus holding a briefcase and a bucket. After the two would-be robbers approached, he refused to give up his belongings. They hit and beat him, according to a police report, which said a bus driver witnessed the attack.

The victim pulled two knives from his bucket and stabbed one man and cut the other.

Police arrested the wounded men. The robbery victim suffered minor injuries but declined medical treatment. Robbery detectives were continuing their investigation today.

Criminal Friday

Today, Criminal Friday passes along some advice from a public defender, courtesy of Craig's List.  My favorite: 

2. Don't give the cops permission to search your car!

If Officer Friendly is asking you if he can search your car, that means he has no right to search your car unless you give him permission; otherwise, he wouldn't be asking you for permission. Officer Friendly is not your friend. If your sack/glock/bloody glove is in the car (1) he will find it, (2) he will arrest you, and (3) you will call me and I will tell you that you should have Just Said No.

And an explanation of some things that aren't defenses:

"I thought the cop was a prostitute."

"That crank was bunk, anyway."

"I just put my junk a little bit of the way in."

"I just dropped my truck off in the desert for 15 minutes. By the time I came back, someone must have accidentally loaded 250 kilos in it."

"I didn't know that Kara_AZ_13 was really Detective Uhall of the Tucson Police Department.

"But it was my first time."

The following are probably not defenses to crimes, but MAY be defenses:

"The bitch ain't even dead." If my file contains an autopsy report, I think the professional rules of conduct bar me from advancing The Bitch Ain't Dead defense.

You can find the rest here.  I might add "Don't get your legal advice from Craig's List."

Criminal Friday

If you read How Appealing, then you already know about this.  However, it bears repeating:  If you're going to commit a crime, don't tell anybody about it.  Seriously.  Unfortunately, Asante Kahari didn't listen.

In United States v. Fraser, Kahari (a/k/a Aaron Fraser) was charged with perpetrating a counterfeit-check scheme.  The problem is, it was the exact same scheme that Kahari had already written about in his book The Birth of a Criminal.  You read that right:  he wrote about how to commit a crime, got the book published, then went out and committed the actual crime.

So, the district court admitted this book into evidence, which is the basis for Kahari's appeal.  As you might expect, he loses.  See Fed. R. Evid. 404(b).

This reminds me of some sage advice I once heard from a prosecutor.  He said that if you're going to commit a crime, never tell anyone you did it.  If you're trying to impress someone, make up a crime.  They're not going to check.  Just don't admit to any crime you've actually done.   See Fed. R. Evid. 801(d)(2); see also id. 804(b)(3).

Criminal Friday

When will people learn:  If you are on trial for murder, it does not help your case when you try to strangle your lawyer in open court.  Contrary to what you may believe about the judicial system, killing your attorney is not going to bring any meaningful delay to your trial, except for the amount of time they need to find some extra shackles. 

You know this guy is really in trouble when the newspaper describes his previous crime in this manner:

Gomes was scheduled to go to trial yesterday for the 2002 fatal shooting of Ildebrando Correia, 45, a hardworking Dorchester family man prosecutors don’t believe Gomes even knew.

It is like the reporter was taking dictation from the prosecutor.  Perhaps if you're this far up shit creek, it doesn't even matter anyway.  Might as well choke your attorney, then take a crap on the flag in the middle of the courtroom while making out with a Real Doll likeness of Osama Bin Laden.  No way you'll be convicted then.  For sure.

Criminal Friday

Welcome back to Criminal Friday.  Today's case comes from the 5th Circuit.  In United States v. Harper, No. 05-40500 (5th Cir. May 2, 2006), a federal prisoner was convicted of assaulting his cellmate with a dangerous weapon.  The government appeals because instead of applying a 4-point increase for the severity of the injury, the district court found a lesser degree of injury and applied a 3-point increase.

If you're like me, you're asking yourself, "How bad was this attack and the resulting injuries?"  Well, let's go to the opinion:

According to the Presentence Report (“PSR”), Harper quarreled with his cellmate, Lujan, after Lujan turned off the lights in the cell while Harper was reading. Harper then stabbed Lujan with a meat thermometer six times.  Prison officials transported Lujan by ambulance to a local hospital, where he was treated for a collapsed lung.

He stabbed his cellmate 6 times with a goddamn meat thermometer resulting in a collapsed lung!  Holy shit!

The district court, when it applied the 3-point increase, operated under the faulty assumption that Booker and Shepard required all facts that increase a defendant's sentence to be admitted by the defendant or found beyond a reasonable doubt by the jury.  The government's response was "I know that's what they say, but that's not what they mean."  It explained the proper standard was a preponderance of the evidence, which means that in determining the severity of the injuries, the court could look at the fact Harper admitted he stabbed his cellmate (with a freaking meat thermometer!), and that the cellmate had a bunch of stab wounds and a collapsed lung.  The district court didn't buy it, even though it acknowledged a recent 5th Circuit decision was on point.

So the 5th Circuit didn't take kindly to this and they reversed and remanded for resentencing.  Today's lesson:  Don't bunk with someone who keeps a meat thermometer underneath their pillow.  Damn.

Criminal Friday

This case from the 7th Circuit not only involves a truly horrendous set of circumstances, it also includes some pretty ludicrous arguments.  Because Criminal Friday is a chance for us to learn from the mistakes of others, let me say this:  If your best argument is that the federal court doesn't have jurisdiction because the government can't prove a car traveled in interstate commerce, you're screwed.

The basic story is this:  A bunch of college students were driving back to campus in a Cadillac Escalade.  While stopped at a gas station, the defendant approached the driver, demanded the keys, and then shot the kid through the heart.  The defendant got in the car and sped away, and the kid died shortly thereafter.

Considering the overwhelming evidence against him, I guess the defendant thought the best course of action was to contest everything, including the court's jurisdiction under the theory that the government couldn't prove the Escalade traveled in interstate commerce (the circuit court opinion notes, "The government therefore had to show that Prendergast’s Escalade at some point crossed the border into Illinois—which shouldn’t be too difficult, given that Escalades aren’t manufactured in Illinois.").

Thus, at trial, the government called the police officer in charge of the investigation to the stand:

AUSA: Did you conduct an inquiry based on the VIN of the Cadillac Escalade with the state agency to determine its origin?

KANE: I had that done, yes.

AUSA: And what were the results of that?

KANE: The vehicle was made in Arlington, Texas.

Oh, snap!  That's not even in the 7th Circuit, let alone Illinois.  But the defendant isn't through there; he argues this is hearsay testimony, under the assumption that if this testimony is thrown out, the government somehow doesn't have a case (keeping in mind, Escalades are not manufactured in Illinois).

The court, obviously exasperated by this argument, writes, "And although it’s common knowledge that Escalades aren’t made in Illinois, [defendant] insists that the government still must meet its burden of proof."  Thus, the circuit court decides to play hardball and, in the words of A3G, bench slaps the defendant:  It notes he didn't object at trial so he only gets plain error review.  Dizzam!

We all know plain error review isn't going to get you very far if you're the defendant, and the court here reasoned that because everyone knows that Escalades are manufactured outside of Illinois, it would have been easy for the government to prove this fact by other means, even had the defendant objected.  So, no miscarriage of justice here.

Defendant also makes some silly arguments about his post-Miranda statements should be suppressed.  I enjoyed the court's description of what the defendant said in the 10 minutes in between when he signed a written waiver of his rights and when he asked for a lawyer (yeah, that's right, he signed a written waiver):

During the 10 minutes, [defendant] said, among other things, (1) “I’ll bet the video don’t show my real face, do it?”; (2) the woman in the front seat “can’t identify me”; and (3) you “can’t trust those whores at the gas station.” He also denied that his fingerprints would be found on the gun or in the Escalade. They were.

Who does this guy think he is, John Robie?  You walked up and shot a kid at a gas station; don't get cocky and act like you've committed the perfect crime.  Just shut up.

And, finally, the defendant's last argument, as explained by the court:

[Defendant] also argues that the district court wrongly concluded that it was required to impose his two life sentences consecutively, based on its interpretation of 18 U.S.C. § 924(c)(1)(D)(2). Not only is it unclear how [defendant] would benefit if the court were allowed to consider imposing his two life sentences concurrently instead, but we have already rejected an essentially identical argument in United States v. Sutton, 337 F.3d 792, 802 (7th Cir. 2003), and find no reason to conclude differently here.

Lessons learned today:  If you've been convicted of killing a kid and carjacking, on appeal you got to bring it.  You can't rest your case on the hope that the government can't prove a car, not even manufactured in the state, traveled in interstate commerce.  Also, if you've committed a crime, don't get cocky.  Lastly, two concurrent life sentences are as bad as two consecutive life sentences:  to get out of federal prison, you're gonna need both of them overturned, otherwise it doesn't matter.  Thus, if you don't have a shot at overturning both sentences, you're really just wasting your time.  Though, I guess when you're in prison for life, what else do you have but time, and a sore butt.

United States v. Sherrod, No. 05-1345 (7th Cir. Apr. 27, 2006)

Criminal Friday

I saw this on the news last night, and it is just incredible.  A local news channel decided to do an investigation on how area police departments take citizen complaints against their officers.  The news channel contracted with a non-profit group that monitors police, and who conducts these types of checks all the time. 

So, they go to three police departments, and everything is going pretty cool.  Some are better than others, obviously, but for the most part they are all very professional.  Then he gets to the fourth department.  In the lobby they have a posted policy stating any citizen can pick up a complaint form at the front desk.  Only when the investigator tries to get the form, they won't give it to him, telling him he first has to speak to a supervisor.  Twenty-two minutes later the supervisor shows up, and won't give up the form unless the investigator tells him, in the public lobby, what it is in regards to.  The investigator just keeps asking for the form, remaining relatively calm the whole time, and the supervisor keeps denying him.  About two and a half minutes later, the police officer places the investigator under arrest for disorderly conduct, and the investigator's head is banged in the process.

The story then gets weirder.  The next day in the newspaper, the police department says the investigator was causing a scene and using foul language.  They also said he banged his own head against the glass (an accident which gave him a decent cut, and for which he was later taken to the hospital). 

Turns out, their version was not altogether true.  You can view the report and video of the incident here.

My interpretation, after watching the video:  The news makes a bigger deal out of the head bang than it really is.  From the video, it doesn't appear that the officer purposefully slammed his head into the glass, but it also doesn't appear the investigator did it on his own either.   Aside from this minor issue, it is clear the officer acted very unprofessionally.  Making a complaint against a police officer is a very stressful and difficult ordeal for most people, and it doesn't help if they are confronted and made to jump over hurdles during the process.  Asking for a form, which is advertised in the lobby, seems like a pretty simple request.

Criminal Friday

This story comes from Wednesday's Miami Herald.  It is about this guy who, using his wife's medical bag, started going door-to-door claiming he was a doctor and offering free breast exams.  Only he wasn't a doctor, as at least two women found out.

A description of some of the Not-a-Doctor's smooth moves:

Winikoff put his doctor's bag on the couch, took out a stethoscope and began to examine her breasts, she said. He asked questions about her young daughters, and then told her he needed to examine her in private. Winikoff even showed Felix how he could perform an exam on his girlfriend, the boyfriend said.

I know the article says he was wearing a striped polo shirt, but somehow I'm convinced he was actually wearing this classic t-shirt.

Criminal Friday

By now, I assume most people have heard about the couple who pretended to have sextuplets in order to convince people to send them money.  After being caught, the husband said:

"We didn't mean to hurt anybody," he said. "We did it out of financial reasons."

They set up a website to collect donations, let tv cameramen into their home to show off the nursery room, and appeared in a picture on the front page of the local newspaper holding up six little shirts.  All to convince people to send them money.  How exactly is this calculated not to hurt anybody?

What's funny, though, is that this is the best plan they could come up with.  Phase 1:  Pretend to be pregnant with a bunch of kids.  Phase 2:  Get lots of publicity.  Phase 3:  Profit.  With a rock solid strategy such as this, I'm sort of surprised they didn't move on to something a little more challenging, like robbing a Vegas casino.

Last night I was watching the news, and the wife said she didn't tell the husband that she wasn't really pregnant until about the time she began telling other people she'd given birth.  So, his wife was supposedly pregnant for 9 months, and, if we are to believe them, he didn't notice she really wasn't.  When asked by the reporter how this could be, the husband said:  "She just ate a lot more and got fat."

Hilarious.

In other criminal news, I'm going to Vegas this weekend, so don't expect anything on Monday.  If something totally sweet happens, like my neighbor and I end up marrying a couple of cocktail waitresses, I'll let you all know.

Criminal Friday

In United States v. Mahasin, No. 05-1484 (8th Cir. Mar. 31, 2006), Qusai Mahasin was on trial for possession of heroin with intent to distribute, use of a firearm during a drug trafficking crime, attempted murder of a government witness, and use of a gun during the attempted murder of a government witness.  While the verdict was being read, Mahasin rushed the Assistant U.S. Attorney (for those not in the know, the prosecutor).  After another trial for this attack, he was sentenced to an additional 60-months (5 years) to run consecutively with his previous sentence.

Mahasin appealed, arguing, among other things, that "the district court improperly ordered him restrained with leg irons, arm irons, shackles, and a stun belt while he defended himself in the trial."  Slip op. at 5.  Unfortunately for him, though, Deck v. Missouri, 125 S. Ct. 2007 (2005), can't save him:

Here, the district court ordered Mahasin restrained during the trial because of his recent conviction for attempted murder of a government witness, his recent assaults on both a deputy sheriff and a fellow inmate, his alleged courtroom assault on a federal prosecutor in a courtroom in the same district, and his threats to his own court-appointed attorney.  The district court took efforts to obscure the jury’s view of the restraints, and it was only upon Mahasin’s voluntary disclosure that the jury learned of the restraints. 

Slip op. at 6.

I'd like to think Criminal Friday is an opportunity for us to learn from the mistakes of others.  For example, today we learned not only should we not murder (or attempt to murder) government witnesses, but it is probably not a good idea to attack the prosecutor in open court with a room full of witnesses, including the jury.  But that's just me.

Criminal Friday

• If I've said it once, I've said it a thousand times:  If you're ever hoping to get out of prison, it is not a good idea to threaten your victim's family at your sentencing hearing.


• As one of my friends asked, is there no problem George Mitchell can't fix?


• Speaking of criminals in baseball, the Royals might actually not be last in the AL Central this year. (I'm guessing Sweeney made these comments while laying in a hospital bed.)


• Not that this is a criminal act, but come on parents, let's not go crazy over a spelling bee.  Spelling is so, like, 1901.

Criminal Friday

Today's Criminal Friday story is brought to you by Subway.  Eat Fresh.

Apparently, an employee at a Subway store decided to pull an inside job and rob the joint, enlisting one of unemployed friends in his diabolical scheme.  Their plan:  Have Unemployed-Friend come into the store and pretend to hold Inside-Man hostage for money.  And it looks like they might have gotten away with it too, had their get-a-way car not stalled.

Yes, the get-a-way car stalled while trying to get a way.

Turns out, the wheelwoman didn't even know she was driving a get-a-way car.  Her boyfriend, Unemployed-Friend, told her he was just going inside to pick up a job application.  Oh, silly, trusting girlfriend.

Here's some advice:  I've tried the whole take-a-date-to-Subway-and-rob-it-while-she-waits-in-the-car thing.  It never works out.  You think you're showing initiative, they think you're a violent felon.  I've also been told it is less romantic in reality than it sounds when you're planning it out with your drunk, unemployed friends.  Of course, I've only been told this by my public defender.  Usually I never see my date again, until the day she identifies me in open court.

Criminal Friday

I read this story in the local paper yesterday.  The lowdown:  This guy was showing off the OnStar system in his Escalade to his girlfriend, but apparently wasn't smart enough to know how to use it.  His stupidity came back to bite him on the ass when OnStar, because it never got a response from him, tracked the Escalade down using GPS and automatically sent the police to make sure he was ok.  Turns out he was, but he also had cocaine in plain view (Uh oh).   In addition to the drugs and $1900 found in the car, the police seized the guy's Escalade with OnStar.

Generally when I'm trying to impress a girl, I skip the OnStar demonstration and go right to showing her my 8-track player.  Then I drop one of my patented pick-up lines:  "Are you 8-tracted to me?" (patent pending).  After that, we go back to my place and pop in a betamax.