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SOMETIMES, VICTIMS HAVE TO BE REAL

It seems as though everyone took the week off except for the 5th Circuit. Over the past few days, we’ve written on two 5th Circuit decisions issued in the past week, and today we visit a third. Bu first, a word from the Supreme Court…

We ought to note that the 5th Circuit was front-and-center at the Supreme Court this week, with some justices expressing skepticism about the 5th’s unusually restrictive standard for granting certificates of appealability (COAs) in habeas corpus cases. That arose during arguments in Buck v. Davis, a Texas death-row case in which Buck’s trial lawyer introduced testimony by a psychologist during the penalty phase that Buck was statistically more likely to be dangerous in the future because he is black. His lawyer’s eliciting and use of that testimony, Buck argues, violated his constitutional right to an effective attorney.

It was a good sign for Buck that only few minutes into the argument, Justice Samuel Alito – described by one observer as “perhaps the justice least likely to be sympathetic to criminal defendants” – said that “what occurred at the penalty phase of” Buck’s trial “is indefensible.”

One of Buck’s claims is that the 5th Circuit’s standard for granting COAs is flawed. Some of the justices’ comments suggested sympathy to his claim. Justice Elena Kagan noted that in death penalty cases, the 5th Circuit denies COAs ten times more often than does the neighboring 11th Circuit. She observed that the statistic “does suggest that one of those circuits is doing something wrong.”

The Buck decision may well be a rich resource for inmates seeking post-conviction remedies under 28 U.S.C. 2254 (state prisoners) or 28 U.S.C. 2255 (federal prisoners), addressing ineffective assistance of counsel issues and standards for grant of COAs under 28 USC 2253.

Over the past few days, we’ve written on two 5th Circuit decisions issued in the past week, and today we visit a third. It’s unusual for several reasons, not the least of which is that the defendant in a child sex case is female.

Lydia Vasquez, a mother of five children, developed an Internet relationship with a man from another state named Keith. Keith was quite real, but he was also an FBI informant. During their long and disturbing electronic relationship, Lydia tried to entice him to visit her by offering to let him have sex with both her 12-year old daughter and her cousin’s infant (after the baby was born). At that point, it was too weird even for Keith, and he had an FBI agent step in, pretending he was Keith and continuing the relationship.

The FBI agent, still posing as Keith, agreed to fly into Texas from Michigan. Lydia was and Lydia was arrested on her way to pick him up at the airport. She pled guilty to inducing and enticing Keith to travel interstate to engage in indecency with a child, in violation of 18 U.S.C. § 2422(a).

When Lydia went for sentencing, the district court concluded that because her conduct involved a minor under the age of 12 (the infant), the 8-level enhancement in U.S.S.G. § 2G1.3(b)(5) applied. But there was a catch. Apparently, Lydia made up the story about the cousin’s infant. The district court said it didn’t matter if the baby was fictitious, the 8-level enhancement still applied.

The 5th Circuit reversed her 140-month sentence.

For purposes of Sec. 2G1.3(b)(5), the Guidelines defines a “minor” as (1) an individual under 18 years old; (2) an individual, whether fictitious or not, who a law enforcement officer says is under 18; or (3) an undercover cop who says he or she is under 18 years. Lydia and the Government agreed that only the first definition applied in this case, but the government argued the district court should hang the enhancement on Lydia even if the baby wasn’t real.

The Court of Appeals held that the plain language of the definition meant that the enhancement in Sec. 2G1.3(b)(5) “does not apply where the defendant solicits another person to engage in unlawful sexual activity with a fictitious minor, invented by the defendant, under twelve years of age. For the enhancement to apply under these circumstances, the minor must be a real person.”

Lydia’s presentence report had concluded that it was unclear whether the baby was real or not, so the Court remanded the case for the judge to rule on the question.

United States v. Vasquez, Case No. 15-41168 (5th Cir. Oct. 5, 2016)

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IT’S NOT MY TRUCK

Ever have this happen to you? You borrow your cousin’s pickup to run into town for a six-pack of the beer formerly known as Bud. You’re reasonably cautious: you ask him whether there are any illegal aliens in the toolbox back in the bed. He says, “Of course not!”

You drive off, mollified and a little self-satisfied that you thought to check. After all, you can’t be too safe. Your congratulatory euphoria lasts until the Border Patrol pulls you over. You open the toolbox for the nice agents, and, lo and behold, there’s an extended family of Mexican inside, eating lunch.

A common enough occurrence, right? Sure. It happened to Duane Sheridan, who was convicted of transporting aliens within the United States in violation of 8 U.S.C. § 1324. Duane explained to the jury that he had no idea those folks were in the toolbox of his cousin’s truck. He had just borrowed the Dodge Ram for a bit.

Duane was convicted, of course, and appealed the judge’s refusal to instruct the jury that when the aliens are hidden in the vehicle, control of the truck alone is not enough to prove he knew the aliens were there.

Duane likened aliens to drugs. The 5th Circuit has held that a jury can infer the knowledge element of unlawful drug possession from the defendant’s control of a vehicle in which the drugs are contained. However, when the drugs are hidden, control alone is not sufficient to prove knowledge. Duane argued that the same should apply for aliens.

The district court followed the 5th Circuit pattern instruction, which said that the jury could convict Duane only if the government proved, among other things, that he “knew or recklessly disregarded the fact that the aliens were in the United States in violation of the law” and that he was hauling the aliens “with the intent to further the alien’s unlawful presence.”

On Tuesday, the 5th Circuit rejected Duane’s position that “the district court’s instruction (and by extension, the 5th Circuit Pattern Jury Instruction) ‘took for granted Mr. Sheridan’s awareness that ‘said alien’ (the hidden cargo) was present in the pickup truck’.” The Court ruled that the instructions the jury heard presupposed that a jury would have to find that the defendant knew the aliens were hidden onboard. Otherwise, how could the defendant know or recklessly disregard the aliens’ immigration status or intend to further their being in the U.S. illegally. You can’t intend to help the illegal acts of someone you don’t know you’re helping, the Court seemed to say, and you can’t know you’re helping someone you don’t know is there.

The Court concluded that district court’s jury charge was an adequate statement of the law. That’s probably so, although the implication is not as clear as the defendant might want it. But that’s the job of defense counsel: the argument that one can’t aid someone he doesn’t know is there was one Duane’s lawyer should have been pointing out to the jury.

United States v. Sheridan, Case No. 15-41678 (5th Cir., Oct. 4, 2016)

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SOUTH OF THE BORDER

Pablo Zarate Juarez was a guy who used to travel in style. With family living in the United States, as well as substantial business interests here, Pablo found it most efficient to travel back and forth between here and his Mexican home base in a Pilatus PC-12.

The PC-12 is just a single engine airplane, but don’t let that fact fool you. The Swiss-built aircraft is all business, and pretty sweet to boot. It sports a 1,200-hp turboprop up front, and can carry 9 people in pressurized comfort, cruising at 30,000 feet with over 310 mph of airspeed. The PC-12 was the perfect choice for a high flier like Pablo. In fact, he used it to cross the border about 100 times in fewer than three years, shuttling back and forth between businesses and family commitments.

Unfortunately, some of the business may have run afoul of parts of federal law, the parts that deal with controlled substances. All of Pablo’s trans-border travel came to a screeching halt in June 2012, when his PC-12 was seized as part of a drug investigation. Luckily for Pablo, he apparently was not with the PC-12 when it was detained. He was in Mexico, where he chose to stay.

The Government filed a civil action to forfeit the PC-12. And why not? PC-12s sell for about $4.8 million new. With that kind of price tag, Pablo kind of wanted it back, so he filed a claim for the plane individually and on behalf of a couple of limited liability companies in which he had an interest. Meanwhile, the Feds indicted Pablo on money laundering conspiracy and bank fraud charges related to the civil forfeiture of the aircraft.

The Government asked the court to dismiss Pablo’s claims for the aircraft under the fugitive disentitlement statute, 28 U.S.C. § 2466, which prevents a claimant who is a fugitive from justice from contesting a civil forfeiture. The district court dismissed Pablo’s claims under § 2466.

The fugitive disentitlement doctrine, although itself not statutory, is well established in federal common law. The doctrine holds that pending appeals of escaped prisoners will be dismissed, and “is a longstanding and established principle of American law.” Estelle v. Dorrough, 420 U.S. 534, 537 (1975) The notion is that a defendant’s refusal to surrender to authorities “disentitles him to call upon the resources of the Court for determination of his claims”.

Last week, the 5th Circuit affirmed dismissal of Pablo’s claims. The “fugitive disentitlement doctrine” never applied to civil forfeiture cases until Congress resolved the issue by enacting 28 U.S.C. § 2466. The statute permits a judge to “disallow a person from using the resources of the courts of the United States in furtherance of a claim in any related civil forfeiture action or a claim in third party proceedings” if the person knows a warrant has been issued for criminal prosecution, but either purposely leaves the United States; declines to enter the United States to submit to its jurisdiction; or otherwise evades the jurisdiction of the court in which a criminal case is pending against the person. The law may be applied to a company in which the fugitive has a substantial interest as well.

Pablo said he wasn’t really staying away from the United States. He just happened to be in Mexico. The Court didn’t buy it, noting that he was coming here all the time until the plane was seized.

Pablo said his due process rights were being violated, because he was forced to choose to forgo entering the United States to fight the civil forfeiture of the plane or to come to fight the seizure and face criminal prosecution, without being able to avail himself of the Mexico-United States extradition treaty. But the Court said that because the U.S. had not asked for extradition, Pablo had no rights to claim under the treaty.

The Court said that because the record supported a finding that Pablo remained outside the United States to intentionally avoid criminal prosecution, § 2466 required that his claim be dismissed.

United States v. 2005 Pilatus Aircraft, Bearing Tail No. N679PE, Case No. 16-40298 (5th Cir., Oct. 3, 2016)

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NEWS FLASH: DEA’S “MULTI-LEVEL SNITCHING” PROGRAM PRONE TO ABUSE

The Drug Enforcement Administration boasts that its Confidential Source Program is critical to its pursuit of illegal narcotics trafficking. Then again, Wells Fargo claims it has a 160-year “culture of working together to help our customers,” and that didn’t prevent thousands of its employees from opening up phony accounts in customers’ names and badgering other workers to “upsell” any customer unlucky enough to walk through the door or answer the phone on a slow sales day.

Last week, the Department of Justice Office of Inspector General issued a report that will shock anyone who still believes professional wrestling is not fixed. The OIG revealed that “confidential sources can be motivated by factors other than combating crime, including financial gain and avoidance of punishment; therefore, care must be taken to evaluate and supervise their use.”

The DEA’s prime motivator is, it turns out, money. Between October 1, 2010, and September 30, 2015, the DEA handed out about $237 million to about 9,000 confidential sources. assigned to its domestic offices, with over 9,000 of those sources receiving approximately $237 million in payments for information or services they provided to the DEA, an average of over $26,000 a source. The payments included about $9.4 million to people who had been “deactivated” as a source.

The OIG found that DEA’s source payment program “exposes the DEA to an unacceptably increased potential for fraud, waste, and abuse, particularly given the frequency with which DEA offices utilize and pay confidential sources…”

The report comes after the wheels started coming off the Southern District of New York federal drug case against the nephews of the Venezuelan president Nicolás Maduro. The government’s key confidential sources appear to be tainted with credibility problems, having acknowledged improper conduct, including snorting cocaine and hiring prostitutes, while being paid by DEA. It is not yet clear whether the DEA knew what its informants were doing.


The OIG report cited another area of concern as being DEA’s oversight of confidential sources it categorizes as “Limited Use” (usually called “tipsters”). DEA policy specifies these people are sources who make information available independently without direction by the DEA. The Limited Use category is regarded by the DEA as low-risk, and thus DEA policy requires the least amount of supervision. Yet OIG “found that Limited Use sources were some of DEA’s highest paid sources, with 477 Limited Use sources during the period of our review having received an estimated $26.8 million.”

DEA “tipsters” include people employed by TSA at airports, and Amtrak personnel, who provide information about travelers. The report found that “DEA did not appropriately track all confidential source activity; did not document proper justifications for all source payments; and, at times, did not adequately safeguard traveler information.”

DEA does not only use sources. Instead, something like an Amway distribution chain, its sources themselves have sub-sources, and some of the DEA money is intended to be sprinkled on them, too. The OIG said it was “extremely concerned to discover the DEA condoned its confidential sources’ use of ‘sub-sources,’ who are individuals a source recruits and pays to perform activities or provide information related to the source’s work for the DEA. During our review of DEA files, we found evidence of sources who were paid based, in part, on the need to pay ‘sub-sources,’ but the information in the files was insufficient to allow us to determine the full extent of such payments. We found that the DEA has no controls, policies, or procedures for interactions with these ‘sub-sources.’

The deficiencies identified in the DEA audit, the OIG report said, “raise significant concerns about the adequacy of the current policies, procedures, and oversight associated with the DEA’s management of its Confidential Source Program.

Office of Inspector General, Dept. of Justice, Audit of the Drug Enforcement Administration’s Management and Oversight of its Confidential Source Program (Sept. 29, 2016)

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WHO SAYS SENTENCE REFORM IS DEAD? EVERYONE EXCEPT PAUL RYAN

Congress left town last Friday, not to return to Washington, D.C., until after the Nov. 8th election. The Sentencing Reform and Corrections Act of 2015, contrary to the wishes of House Speaker Paul Ryan (R-Wisconsin) remains unconsidered by Congress.

The House and Senate return for a lame-duck session in November, but no one except Speaker Ryan thinks there’s a ghost of a chance that the bill will come up for a vote.

Speaker Ryan has promised since last July that the House would vote on SRCA in September, but that didn’t happen. He’s still repeating his personal desire to move the bipartisan package. In a news conference last week, the Speaker committed to advance the SRCA once lawmakers return to Washington in November. The issue is a top priority for Ryan personally, although other GOP representatives are concerned about looking soft on crime.

The same day, Senator Majority Leader Mitch McConnell (R-Kentucky) offered a much different take. He said SRCA is “very divisive in my conference. I’ve got very, very smart capable people, without regard to ideology, who have very different views on that issue. Whether we can take something up that controversial in that limited amount of time available, I doubt.”

If the bill isn’t voted on by the end of the year, Congress will have to start all over in 2017.

But the odds are long. With Trump advocating for law and order, Republicans are not eager to vote on the matter. If Speaker Ryan wants to make a push for criminal justice reform after the election, he will have his work cut out. It doesn’t help that SRCA is a key priority of President Barack Obama. Riots in Charlotte and elsewhere have also complicated the equation.

The Marshall Project, an advocacy group for criminal justice reform, last week bluntly published what it called an obituary for criminal justice reform. The vice president of Families Against Mandatory Minimums said last week that “the apparent demise of the criminal justice reform bill is not surprising, and many have taken the news as a matter of course, given the current political climate.”

Even Holly Harris, executive director of the Action Network, who only a week ago was cautiously optimistic about SRCA’s chances, now explains the  impending death of criminal justice reform as being because “everybody was so desperate to get something done this year.” She says her group will start its next push in 2017 with more comprehensive measures in mind.

For some  reformers, SRCA’s failure this year was a relief, escaping what some had feared as the worst outcome: Congress enacting a diluted reform bill, declaring mission accomplished, and dropping the subject for years. Much of the retroactivity important to federal inmates was stripped from SRCA last spring in an effort to address critics like Sen. Tom Cotton (R-Arkansas). Another consolation is the hope that Hillary Clinton, who has vowed to “reform our criminal justice system from end to end,” may win, and will keep her promise.

At the same time, Congress failed to pass some really bad bills, like “Kate’s Law,” which would have required five-year prison terms for every person reentering the U.S. illegally, a proposal to make mandatory minimum sentences for fentanyl even worse than they already are, and the Back the Blue Act, which would have made a federal case out of virtually any assault on a local police officer.

So, as The Hill put it, “sentencing reform did not get done this year. Tis the way of election years. But it still has unprecedented bipartisan support, and in any other year it would have soared through. The fight will resume in January. Till then, we can at least take some comfort in Congress’ failure to pass bad bills. For an election year, these congressional failures are successes.”

Some congressional failures are successes in disguise (The Hill, September 23, 2016)

Ryan pushes sentencing reform in face of skeptical GOP (Politico, September 27, 2016)

Ryan, McConnell split on prospects of criminal justice reform (Politico, September 29, 2016)

Criminal Justice Reform: An Obituary (The Marshall Report, September 29, 2016)

Criminal Justice Reform: No Time To Waste (Huffington Post, September 22, 2016)

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YOU’RE NOT BEING HELPFUL

Federal agencies sandbag Freedom of Information Act requesters all the time. In fact, under the Obama Administration – “the most transparent administration in history,” according to the President – “the Obama administration set a record for the number of times its federal employees told disappointed citizens, journalists and others that despite searching they couldn’t find a single page requested under the Freedom of Information Act,” according to the Associated Press.

An order in a Southern District of New York FOIA suit last week may help explain why that is. A federal judge criticized Immigration & Customs Enforcement for torpedoing an FOIA request by searching terms in the plural only, such as “home enforcement operations,” “quotas,” “statistics,” “targets,” “non-targets,” and “collaterals.”

The technique excluded all singular forms. The district court noted that if “Defendants instead searched for only the singular form, they would have yielded documents containing the plural form as well… Without explanation, such searches do not appear to be calculated to produce all responsive records.”

The court also slammed the agency for interpreting the FOIA request as narrowly as possible to avoid release of documents. The requesters were seeking data from ICE’s Law Enforcement Systems and Analysis (“LESA”) on the agency’s home raids to capture illegal immigrants. ICE admitted LESA had a data file of addresses raided, but said it “does not know—and does not track—whether that address is a business, a residence, a street, or some other type of location.” Because it couldn’t tell if the location was a home, the agency “determined that a search of LESA would not yield responsive documents.”

The court ruled that ICE’s “chief reason for failing to search LESA is not valid under FOIA. As part of an agency’s obligation to “construe FOIA requests liberally,” the agency has “no right to resist disclosure because the request fails reasonably to describe records unless it has first made a good faith attempt to assist the requester in satisfying that requirement.”

There’s a good reason that savvy FOIA veterans say that requesters should file a second FOIA request seeking the processing notes from a prior FOIA request. One reporter wrote, “In my case, ‘FOIAing my FOIA’ yielded some interesting, if depressing, behind-the-scenes info. One released email showed that, at one point, my request was forwarded to the wrong DEA field office, where it was accidentally deleted.”

Opinion and Order, Immigration Defense Project v. ICE, Case No. 14-6117 (S.D.N.Y.  Sept. 23, 2016)

Eil, Six lessons from a five-year FOIA battle (Columbia Journalism Review,  Sept. 27, 2016)

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DON’T TOUCH ME

Eddy Vail-Bailon pled guilty to reentering the United States after being deported, in violation of 8 U.S.C. §§ 1326(a) and (b)(1). Section 1326(b)(1) increases the penalty for illegal reentry when the was deported following conviction of a felony. Eddy’s crime was felony battery under Fla. Stat. § 784.041.

The district court socked Eddy with a 16-level increase in his Guidelines level because the judge decided felony battery is a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A). It sure sounds it. “Battery” – unless we’re talking about the Eveready Bunny – sounds ugly.

But, observing that “you can’t judge a book by its cover,” the 11th Circuit reversed. In a decision handed down yesterday, the Court held that the Florida batter statute is divisible, but – in the wake of Welch, Mathis and Curtis Johnson, neither alternative element is a crime of violence.

Under Fla. Stat. § 784.041, a person commits felony battery if he (a) actually and intentionally touches or strikes another person against the will of the other; or (b) causes great bodily harm, permanent disability, or permanent disfigurement. The prosecution can prove a violation of statute “by showing that a defendant “intentionally struck” the victim or that he merely “actually and intentionally touched” the victim).”

When statutes are divisible, trial judges are permitted to look at the state court records to see under which of the alternatives a defendant is convicted. Eddy’s state records were not illuminating, leaving the Court to assume Eddy was convicted under the less serious of the alternatives, “actually and intentionally touching.”

The “elements clause” of Guideline 2L1.2(b)(1)(A) defines a “crime of violence” as including any “offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” The Supreme Court has already held that Florida battery, when committed by actually and intentionally touching another against his or her will, does not satisfy the “elements clause” because it can be satisfied by any intentional physical contact, ‘no matter how slight.’ The Circuit observed that the phrase “physical force” that appears in the “elements clause” necessarily refers to “violent force—that is, force capable of causing physical pain or injury to another person.”

The Circuit held that the second element under the Florida batter statute – that the intentional touching from the first element have “cause[d] great bodily harm, permanent disability, or permanent disfigurement” – likewise contains no requirement that the offender intentionally or knowingly cause bodily harm of any type. So, as Eddy argued and the government conceded, a person can be guilty of Florida felony battery if the offender taps another person on the shoulder while that person stands near the top of stairs, and the person whose shoulder was tapped is either startled or otherwise reacts in such a way that he falls down the stairs and suffers grievous bodily harm.”

The 11th Circuit said, “A crime that occurs in these ways does not qualify under the ‘elements clause’ as a ‘crime of violence’ under Supreme Court precedent. First, it does not involve physical force’…” The Supreme Court has explained that the phrase ‘physical force’ means violent force – that is, force capable of causing physical pain or injury to another person – and explained that “violent” force is “the sort that is intended to cause bodily injury, or at a minimum likely to do so.”

This necessarily excludes Florida felony battery committed by mere touching. “Nor can it be that,” the Court held, “in a given case, the fact that a mere touching actually does result in great bodily harm somehow changes the character of the mere touching from an action that is not likely to result in bodily harm to one that is likely to result in bodily harm. In other words, the results of a specific incident of mere touching do not alter the fact that the nature of mere touching, in and of itself, as the Supreme Court concluded in Curtis Johnson, is not likely to result in bodily harm. So Florida felony battery by mere touching cannot qualify as a ‘crime of violence,’ no matter what the injury resulting from the mere touching might turn out to be.”

United States v. Vail-Bailon, Case No. 15-10351 (11th Circuit, Sept. 28, 2010)

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SOMEBODY SET UP US THE BOMB

Danny Sheehan was a guy who needed money, probably because he had spent his formative years watching action-adventure movies and playing video games instead of learning a gainful occupation. One of the games must have been Sega “Zero Wing”… because he sure “set up us the bomb.”

Danny concocted a get-rich-quick scheme with more moving pieces than a clock. He bought a prepaid cell phone and the components needed to build a pipe bomb. First, Dan built a bomb and set it off in his backyard shed, just to make sure it worked. It did. So he built a second pipe bomb, complete except the igniter was not wired up. He put the bomb in a cardboard light fixture box he’d gotten from Home Depot, and while wearing a wig, arm sling and make-up, planted the box with the bomb in a Home Depot lighting department. Dan, who’s allergic to cats, even planted cat hair in the box to throw off investigators.

He connected a string from the box to the shelf to make it seem that moving the box would set off the bomb. About two weeks later, Danny sent a handwritten letter to the store manager, telling him where the bomb was planted and that it could not go off. Pointing out that he could build and plant a bomb undetected, Danny demanded $2 million, or he would disrupt Black Friday sales.

Even though he warned against the store manager against it, Home Depot officials called the police. The EOD squad moved the bomb to a back room, but accidentally set it off while trying to take it apart. No one was hurt.

Two days later, Dan called the store manager on his throwaway cellphone, lowering his demand by a million. Unfortunately for a guy who planned everything else to a “t,” Danny inexplicably left his anonymous cellphone on after the call. The FBI snagged the phone number, then tracked the phone back to the retailer. Even though Danny bought it anonymously, the Feds – using what the Government drily calls “locational information” –  traced the location through cellphone towers right to Danny.

Too bad Danny wasn’t allowed to make it to the getaway phase, because those plans were worthy of Mission Impossible. In his admission, Danny explained:

Earlier this year, I… was given a Yamaha Wave-Runner which was hollow and motorless. I got this through a contact on [Craigslist]… I also purchased a cooler at a K-Mart… which I was going to use with the Wave-Runner as part of my plan for the money drop. I modified both the Wave-Runner and the cooler by putting holes in them. The cooler is now attached to the seat of the Wave-Runner… My plan for the money drop was to put the Wave-Runner in Huntington Harbor, and to hide in the water under the Wave-Runner and have the extortion money placed into the cooler and I would retrieve it from beneath the Wave-Runner through the holes I had cut into the cooler and the Wave-Runner. I planned to use an air tank so I could stay under water and swim away with the money.

Indeed, Danny had bought  SCUBA equipment in preparation for the escape.

Danny was charged with extortion and using a destructive device in a crime of violence under 18 U.S.C. Sec. 924(c)(1)(B)(ii). He admitted to the extortion, but argued the Home Depot bomb would not detonate absent extraordinary circumstances (such as the cops bungling the dismantling of it, as they did), and it could not be readily converted into such a device. The issue was important, because the 924(c) (1)(B)(ii) count carried a mandatory 30-year sentence.

The jury found the Home Depot bomb was a destructive device within the meaning of the statute. Last week, the 2nd Circuit agreed.

The Court of Appeals said that even though the device was “incapable of detonating in its ordinary or intended manner (because, for example, it lacks a particular component ordinarily present in such a device), but is nonetheless capable of detonating, is an ‘explosive bomb’ within the meaning of the statute.

Danny argued the government’s experts – who said the device could have exploded simply from being taken apart – were so obviously wrong that no reasonable jury could believe them. The Court said “although there may be rare circumstances where an expert’s testimony is so incredible that no rational factfinder could believe it beyond a reasonable doubt, the testimony of [the experts] does not fall into that category. Their testimony is not so illogical or contrary to common sense that no rational jury could accept it. Drawing all inferences in favor of the government, we must conclude that the jury credited their testimony that the device could be detonated over the contrary testimony of the defense expert.”

Danny also argued that even if the “device was an explosive bomb, [his] conviction must still be reversed because, measured objectively, it was neither designed nor redesigned for use as a weapon.” The Court ruled, however, that “in light of the objective features of the device – which was built to look like an IED, contained an explosive, and was capable of detonating – the jury could rationally find that the device was objectively designed as a weapon even if it was missing a component required to enable it to explode in a specific way.” The bomb could detonate (and in fact it did, albeit accidentally), making Danny’s belief it could not irrelevant.

Danny contended the device was missing crucial parts – the battery and connectors – and therefore could not be “readily assembled” into a working bomb. But the missing parts could have been found inside the Home Depot in which the device was planted. The 2nd Circuit said “a rational jury could conclude that Sheehan’s device – which indisputably lacked a functional fuzing system – was a partially completed device designed in such a way that with readily available materials it could have been converted into a functional explosive device… The government does not have to offer evidence that a defendant possesses commonly available materials if he or she otherwise possesses all of the key components necessary to assemble a destructive device.”

Accordingly, the appellate panel held, a jury could convict if it found beyond a reasonable doubt that the device qualified either as a “destructive device” or as a “combination of parts” designed so that it could readily be assembled into a listed destructive device.”

But, Danny complained, he never really intended to build a working bomb. The statute, however, makes it illegal to possess a working bomb or merely to intend to do so. The government proceeded on the theory of “objective design,” meaning that Danny’s intent was irrelevant.

This case is different, the Court said, from a case where a person “merely possessed, for legitimate reasons, a variety of ordinary items that could be used either to build bombs or to build something quite innocent.” There, intent to convert those items into a destructive device is required to prevent people from being convicted for harmless, legitimate acts. “That policy concern is not implicated,” the Court said, “where the assembled device lacks any legitimate purpose.”

Ironically, Danny could have made the same point to Home Depot had his pipe bomb been filled with sand instead of gunpowder. If he had done that, it is much less likely a jury could have found the device could readily be assembled into a destructive device with readily available parts, and – while he’d be doing time for extortion – he would have avoided the mandatory 30-year sentence.

United States v. Sheehan, Case No. 15-1028 (2nd Cir.  Sept. 23, 2016)

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KILLING FLIES WITH ELEPHANT GUNS

Do ex-offenders who complete their sentences deserve a clean slate? And how should that be balanced against the public’s right to safety, especially for children?

Currently, the federal and state correctional systems supervise about 6.9 million people. The FBI adds over 10,000 people a day to its database. About one-third of adults have been arrested by age 23. Together, local, state and federal law enforcement agencies are approaching 250 million arrests, resulting in close to 80 million individuals in the FBI criminal database. See Nicholas M. Wooldridge, A Federal Expungement Law Should Be a Priority in Any Future Criminal Justice Reform Effort, JURIST – Hotline (Sept. 22, 2016).

Some collateral consequences are nonsensical. Why should ex-offenders be stripped of the right to vote? Some are overbroad. Those convicted of violent offenses probably should be denied firearms, but why should someone with a 30-year old check forgery conviction be denied the right to shoot skeet?

Now add to the mix two explosive factors, the first being protection of our children and the second being that the ex-offenders were convicted of child sex offenses. Most people would say that too much is not enough. The 11th Circuit grappled with that question last week, looking at what is touted as the strictest sex offender residency law in America.

Miami-Dade County adopted an ordinance in 2005 that prohibits a person convicted of any one of several enumerated sexual offenses involving a victim under 16 years old from residing “within 2,500 feet of any school.” The 2,500-foot distance is “measured in a straight line from the outer boundary of the real property that comprises a sexual offender’s or sexual predator’s residence to the nearest boundary line of the real property that comprises a school,” rather than “by a pedestrian route or automobile route.” The plaintiffs – people who had been convicted of such offenses – sued, claiming that the collateral consequence was an ex post facto punishment prohibited by the Constitution.

The district court threw out the case, but the 11th Circuit reinstated the case for several of the plaintiffs who proved they had been convicted before the ordinance was enacted.

An ex post facto law is a law that applies to events occurring before its enactment and that disadvantages the offender affected by it, by altering the definition of criminal conduct or increasing the punishment for the crime. If the law imposes collateral consequences on offenders, the Supreme Court has adopted a two-stage inquiry. If the intention is to impose punishment, the ordinance is a prohibited ex post facto law. If the act’s intention was to enact a regulatory scheme that is civil and nonpunitive, the court looks at whether the effect is nevertheless so punitive either in purpose or effect “as to negate the State’s intention to deem it civil.”

Here, the County argued its ordinance was intended to be civil and nonpunitive. Accepting that, the Court focused on the effect it had on people who were subject to it and were convicted before its passage. One of the plaintiffs alleged he “was twice instructed by probation officers to live at homeless encampments after the County’s residency restriction made him unable to live with his sister and he could not find other housing compliant with the restriction. He currently lives at a makeshift homeless encampment near ‘an active railroad track’.” Another plaintiff said he “sleeps in his car at the encampment because, ‘despite repeated attempts, he has been unable to obtain available, affordable rental housing in compliance with the Ordinance’.”

The Court found the plaintiffs also had adequately alleged the ordinance went well beyond what was necessary to protect the public. They claimed “an individual becomes subject to the restriction based solely on the fact of his or her prior conviction for a listed sexual offense, without regard to his or her individual ‘risk of recidivism over time’… despite the fact that ‘research has consistently shown that sexual offender recidivism rates are among the lowest for any category of offenses, and that this lower risk of sexual offense recidivism steadily declines over time’. Nonetheless, the County’s residency restriction applies for life, even after an individual no longer has to register as a sexual offender under Florida law and is no longer subject to the state law 1,000-foot residency restriction. The County’s residency restriction also applies ‘even if there is no viable route to reach the school within 2500 feet’.”

Finally, plaintiffs argued that by forcing them into homelessness, the ordinance made it that much harder for them to obtain treatment, which is the only proven means of reducing recidivism.

The Court’s role at this point in the proceeding was only to determine whether the plaintiffs had stated a plausible claim, such that they should be permitted to proceed. The appellate panel ruled that Doe #1 and Doe #3 “alleged sufficient facts to raise plausible claims that the County’s residency restriction is so punitive in effect that it violates the ex post facto clauses of the federal and Florida Constitutions. Whether Doe #1 and Doe #3 ultimately prevail is a determination for a future stage of this litigation.”

Doe v. Miami-Dade County, Case No. 15-14336 (11th Cir., Sept. 23, 2016)