The Eleventh Circuit Court of Appeals handed down an interesting opinion -- interesting because it brings up a question of ethics regarding plea bargains and sentencing.
James Dorsey was convicted of drug conspiracy and drug distribution. After his arrest, Dorsey cooperated with the police. He called his distributor and gave them the name of an undercover cop. The distributor called the cop to make the sell. When the distributor arrived to deliver the drugs, he was arrested.
Dorsey said that he was promised that he would receive a § 5K1.1 sentence departure for his cooperation if he pled guilty. The sentence departure, however, requires the government to file a motion -- the Judge cannot give it without the motion.
The government has a "power, not a duty, to file a motion when a defendant has substantially assisted." Therefore, a district court cannot grant a downward departure for substantial assistance absent a motion by the government.
The problem came when Dorsey decided to have a jury trial and not plead guilty. The government did not file the motion. Dorsey appealed on the grounds that the government was punishing him for exercising his Constitutional right to a trial by jury.
The Supreme Court, in Wade, 504 U.S., held that federal district courts have the authority to examine a prosecutor's refusal to file the motion and grant a remedy if it finds that the refusal was based on an unconstitutional motive.
The Eleventh Circuit had not previously determined that not filing the motion because the defendant wanted a jury trial was an unconstitutional motive, but the Third and Ninth Circuit Courts had held that it was.
While the government may refuse to file a § 5K1.1 for many reasons, and it is within the government's discretion to do so, 'to punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.'
The Eleventh Circuit agreed and remanded the case back to the District Court and the burden is on Dorsey to establish a "substantial showing" that the government refused to file the motion as punishment for his decision to go to trial.
Friday, August 31, 2007
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Thursday, August 30, 2007
California's rules on entrapment
Like Mississippi, California comes down hard on entrapment. These excerpts are borrowed from the online article "Entrapment," which was originally prepared by the Alameda County District Attorneys Office.
Entrapment is a complete defense to a crime. This means a defendant is entitled to an acquittal if he committed the crime under circumstances constituting police entrapment. It does not matter that the evidence against the defendant was overwhelming, or that his guilt was undisputed. If he was entrapped, he goes free.
Although the penalty is severe, the courts believe it is justified by the need to discourage officers from engaging in overzealous tactics. In the words of Justice Frankfurter, “The courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced. Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.”
In addition, entrapment is viewed as “a type of lawless law enforcement,” “a substitute for skillful and scientific investigation,” and a tactic which is sometimes rationalized under the theory that “the end, when dealing with known criminals or the criminal classes, justifies the employment of illegal means.”
The article goes on to define what is and what is not entrapment. The overriding principle used to determine entrapment is:
Entrapment occurs if the conduct of the investigating officers or their agents in dealing with the defendant would “likely” have induced a “normally law-abiding person” to commit the crime with which the defendant was charged.
A "normally law-abiding person" is not characterized as someone who would never commit any crime under any circumstance -- but someone who, "although he is normally law-abiding" would "commit a crime -- even a felony -- if sufficiently motivated."
Accordingly, the main issue in entrapment cases is whether officers provided such motivation. As the California Supreme Court explained, “What we do care about [in determining whether entrapment occurred] is how much and what manner of persuasion, pressure, and cajoling are brought to bear by law enforcement officials to induce persons to commit crimes.”
What is not permissible:
1. Putting pressure on the target
2. Creating an unusual motive
3. Making the crime unusually attractive
What is permissible:
1. Creating an opportunity to commit a crime
This is because it is presumed that a normally law-abiding person would resist the temptation to commit a crime if officers did nothing more than give him an opportunity to do so.
2. Criminal plan originated by officers
I can't see any justification for this at all, and the article does not give any examples.
3. Gaining defendant's confidence
If the government is going to that much trouble to get someone to commit a crime, that, to me, in entrapment. The example given didn't really prove that the agent was attempting to gain the defendant's confidence, and the explanation given doesn't sit well with me.
The police remain free to take reasonable, though restrained, steps to gain the confidence of suspects. A contrary rule would unduly hamper law enforcement; indeed, in the case of many of the so-called ‘victimless’ crimes, it would tend to limit convictions to only the most gullible offenders.”
I think there are enough "victim" crimes for the police to solve, that they shouldn't be spending their time trying to gain the confidence of victimless criminals.
Entrapment is a complete defense to a crime. This means a defendant is entitled to an acquittal if he committed the crime under circumstances constituting police entrapment. It does not matter that the evidence against the defendant was overwhelming, or that his guilt was undisputed. If he was entrapped, he goes free.
Although the penalty is severe, the courts believe it is justified by the need to discourage officers from engaging in overzealous tactics. In the words of Justice Frankfurter, “The courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced. Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.”
In addition, entrapment is viewed as “a type of lawless law enforcement,” “a substitute for skillful and scientific investigation,” and a tactic which is sometimes rationalized under the theory that “the end, when dealing with known criminals or the criminal classes, justifies the employment of illegal means.”
The article goes on to define what is and what is not entrapment. The overriding principle used to determine entrapment is:
Entrapment occurs if the conduct of the investigating officers or their agents in dealing with the defendant would “likely” have induced a “normally law-abiding person” to commit the crime with which the defendant was charged.
A "normally law-abiding person" is not characterized as someone who would never commit any crime under any circumstance -- but someone who, "although he is normally law-abiding" would "commit a crime -- even a felony -- if sufficiently motivated."
Accordingly, the main issue in entrapment cases is whether officers provided such motivation. As the California Supreme Court explained, “What we do care about [in determining whether entrapment occurred] is how much and what manner of persuasion, pressure, and cajoling are brought to bear by law enforcement officials to induce persons to commit crimes.”
What is not permissible:
1. Putting pressure on the target
2. Creating an unusual motive
3. Making the crime unusually attractive
What is permissible:
1. Creating an opportunity to commit a crime
This is because it is presumed that a normally law-abiding person would resist the temptation to commit a crime if officers did nothing more than give him an opportunity to do so.
2. Criminal plan originated by officers
I can't see any justification for this at all, and the article does not give any examples.
3. Gaining defendant's confidence
If the government is going to that much trouble to get someone to commit a crime, that, to me, in entrapment. The example given didn't really prove that the agent was attempting to gain the defendant's confidence, and the explanation given doesn't sit well with me.
The police remain free to take reasonable, though restrained, steps to gain the confidence of suspects. A contrary rule would unduly hamper law enforcement; indeed, in the case of many of the so-called ‘victimless’ crimes, it would tend to limit convictions to only the most gullible offenders.”
I think there are enough "victim" crimes for the police to solve, that they shouldn't be spending their time trying to gain the confidence of victimless criminals.
United States v. Stefan Goff: Another sentence vacated and remanded because it was too light!
In United States v. Stefan Goff, Goff's sentence was vacated and remanded because Goff only received a sentence of 4 months imprisonment, 3 years of supervised release, and a $10,000 fine for possessing hundreds of images of child pornography which were purchased online.
This is the way the sentencing guidelines should have worked:
1. No previous criminal record set the set the "Criminal History" axis as Category 1.
2. The base offense level was 15.
3. The offense level was increased by 2 levels because the porn images involved prepubescent minors or minors who had not reached the age of 12. This makes the offense level 17.
4. The offense level was increased by another 2 levels because the offense involved the use of a computer. The offense level is now 19.
5. The presentence officer recommended another 5-level increase because the offense involved 600 or more images. The offense level is now 24.
6. The lower court credited Goff with a 3-level reduction because he accepted responsibility, putting the final offense level at 21.
For a level 21 offense, the applicable Guidelines range is 37-46 months.
The Government argued that the sentence should be no lower than that warranted by offense level 16, which removes the 5-level enhancement for over 600 images, as many of them were duplicates and Goff possessed only 360 different images. The Third Circuit Court noted, however, that this would result in a 4-level enhancement, bringing the offense level back up to 20, which has a sentencing range of 33-41 months.
The Court decided that 4 months, instead of 33-41 months, was "unreasonable . . . because the circumstances do not warrant such a downward variance."
The issue with the lower Court seemed to be Goff's exemplary life and service to the Community, along with his claim that the crime was a victimless crime which he committed alone and involved no one else.
But Goff's crime is not victimless. Goff's purchase of those porn images supports a growing menace to our society. He aided and abetted the subjection of children to this evil practice.
I am glad the Third Circuit vacated and remanded this sentence. 33-41 months is a just and reasonable sentence for purchasing and possessing 360 images of child porn that involves children under the age of 12.
This is the way the sentencing guidelines should have worked:
1. No previous criminal record set the set the "Criminal History" axis as Category 1.
2. The base offense level was 15.
3. The offense level was increased by 2 levels because the porn images involved prepubescent minors or minors who had not reached the age of 12. This makes the offense level 17.
4. The offense level was increased by another 2 levels because the offense involved the use of a computer. The offense level is now 19.
5. The presentence officer recommended another 5-level increase because the offense involved 600 or more images. The offense level is now 24.
6. The lower court credited Goff with a 3-level reduction because he accepted responsibility, putting the final offense level at 21.
For a level 21 offense, the applicable Guidelines range is 37-46 months.
The Government argued that the sentence should be no lower than that warranted by offense level 16, which removes the 5-level enhancement for over 600 images, as many of them were duplicates and Goff possessed only 360 different images. The Third Circuit Court noted, however, that this would result in a 4-level enhancement, bringing the offense level back up to 20, which has a sentencing range of 33-41 months.
The Court decided that 4 months, instead of 33-41 months, was "unreasonable . . . because the circumstances do not warrant such a downward variance."
The issue with the lower Court seemed to be Goff's exemplary life and service to the Community, along with his claim that the crime was a victimless crime which he committed alone and involved no one else.
But Goff's crime is not victimless. Goff's purchase of those porn images supports a growing menace to our society. He aided and abetted the subjection of children to this evil practice.
I am glad the Third Circuit vacated and remanded this sentence. 33-41 months is a just and reasonable sentence for purchasing and possessing 360 images of child porn that involves children under the age of 12.
Stokes v. Gann: Entrapment -- Does it violate Constitutional Rights?
How far can a law enforcement agency go in its sting operations to catch crime in action?
According to the Courts:
According to the Courts:
- they can target a specific individual
- they can repeatedly contact the target individual by phone
- they can approach the target individual at work
- they can pressure the target individual to commit the crime
- they can provide the transportation and items needed to commit the crime
The lower courts agreed this is entrapment, but refused to acknowledge it as a violation of Constitutional rights violation. The Fifth Circuit Court of Appeals agreed that it is not a Constitutional Rights violation because the agent's conduct was not "so brutal and so offensive to human dignity that it shocks the conscience." The Court's Opinion cited a laundry list of court cases that give precedent to this standard.
What was the crime?
The Mississippi Department of Wildlife, Fisheries, and Parks received reports that a co-worker of Steven Stokes was hunting deer illegally and launched an undercover sting operation against Stokes (we assume they also launched one against the co-worker, but that is not mentioned in the Opinion). Stokes finally committed the crime of hunting deer at night using a spotlight, which is called "headlighting deer." The agent provided the transportation, the gun, and the spotlight.
In Mississippi, entrapment is an affirmative defense unless the defendant "already possessed the criminal intent and the request or inducement merely gave the defendant the opportunity to commit what he or she was already predisposed to do," and the charges were dropped against Stokes.
Maybe this level of entrapment isn't a violation of Constitutional rights, but it certainly is ill-advised and all persons responsible for coming up with this scheme should be looking for another job -- NOT in law enforcement.
Wednesday, August 29, 2007
NEW! We now have email notification of new posts
In June, when PWC Consulting decided to change from a newsletter to a blog, the downside was that we could not provide an email subscription service.
Just today I was sent an invitation to view another blog on Wrongful Convictions, which had an email subscription service. It didn't take long to get signed up with this free service by FeedBlitz.
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Just today I was sent an invitation to view another blog on Wrongful Convictions, which had an email subscription service. It didn't take long to get signed up with this free service by FeedBlitz.
Everyone who was subscribed to our email newsletter should be receiving an email from FeedBlitz letting them know that they are subscribed to this new service. If you were subscribed to our newsletter, but don't receive this email from FeedBlitz, please check your junk mail or spam box.
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Tuesday, August 28, 2007
Sentencing -- What is Just?
3 recent decisions from the 8th Circuit Court of Appeals have reversed and remanded sentences because they were too light and disregarded the Setencing Guidelines:
US v. Coughlin, No. 06-3294
A successful and prominent Wal-Mart executive's no-imprisonment sentence for aiding and abetting wire fraud and filing false tax returns is reversed and remanded where: 1) the district court clearly erred in finding defendant suffers an extraordinary physical impairment and abused its discretion by departing downward eight levels pursuant to U.S.S.G. section 5H1.4; and 2) in imposing an alternative non-Guidelines sentence, the lower court did not state the reasons for the sentence with sufficient specificity and relied on ordinarily irrelevant, and discouraged, grounds in reaching the sentence. Read more...
US v. Hatcher, No. 06-2814, 06-3099, 06-2819, 06-3098
Defendants' sentences for a series of armed robberies are vacated and remanded pursuant to the government's challenge where the sentences were unreasonable since the district court gave significant weight to an improper factor, the severity of consecutive sentences imposed pursuant to 18 U.S.C. section 924(c). Read more...
US v. Bradford, No. 06-3018
A sentence for being a felon in possession of a firearm and possession with intent to distribute marijuana is vacated and remanded for resentencing where: 1) the Guidelines expressly limit the extent of a departure to a single criminal history level when the district court determines that the offender's criminal history score is overstated; and 2) thus, the district court erred when it departed by five levels as none of the other factors it cited justified the extent of the departure at hand. Read more...
I applaud the 8th Circuit Court's insistence that the Sentencing Guidelines be correctly applied. Too many criminals are doing too little time in prison because of plea bargains and Judges who don't have the gumption to deal just sentences.
In the current Michael Vick case, rumors are that the Judge who will sentence Vick has already told Vick that he is not obligated to accept Vick's plea deal. He is expected by the commentators to give Vick closer to the maximum sentence, if not the maximum.
Yes, Vick appears to be genuinely sorry. But that's not extraordinary -- he should be sorry. He should be very sorry. He let a lot of people down. He engaged in a particularly revolting crime -- dog fighting. When caught, he initially lied. Yes, he has a great deal to be sorry about.
Yes, he appears to be cooperating with law enforcement to help close down other dog fighting rings. But that's not extraordinary -- he should share what he knows as part of his debt to society.
Too many criminals are not getting any prison time at all because of plea deals, and too many other criminals are not getting the sentences their crimes warrant.
NOTE: You have to subscribe to Find Law to read their briefs, but subscription is free.
US v. Coughlin, No. 06-3294
A successful and prominent Wal-Mart executive's no-imprisonment sentence for aiding and abetting wire fraud and filing false tax returns is reversed and remanded where: 1) the district court clearly erred in finding defendant suffers an extraordinary physical impairment and abused its discretion by departing downward eight levels pursuant to U.S.S.G. section 5H1.4; and 2) in imposing an alternative non-Guidelines sentence, the lower court did not state the reasons for the sentence with sufficient specificity and relied on ordinarily irrelevant, and discouraged, grounds in reaching the sentence. Read more...
US v. Hatcher, No. 06-2814, 06-3099, 06-2819, 06-3098
Defendants' sentences for a series of armed robberies are vacated and remanded pursuant to the government's challenge where the sentences were unreasonable since the district court gave significant weight to an improper factor, the severity of consecutive sentences imposed pursuant to 18 U.S.C. section 924(c). Read more...
US v. Bradford, No. 06-3018
A sentence for being a felon in possession of a firearm and possession with intent to distribute marijuana is vacated and remanded for resentencing where: 1) the Guidelines expressly limit the extent of a departure to a single criminal history level when the district court determines that the offender's criminal history score is overstated; and 2) thus, the district court erred when it departed by five levels as none of the other factors it cited justified the extent of the departure at hand. Read more...
I applaud the 8th Circuit Court's insistence that the Sentencing Guidelines be correctly applied. Too many criminals are doing too little time in prison because of plea bargains and Judges who don't have the gumption to deal just sentences.
In the current Michael Vick case, rumors are that the Judge who will sentence Vick has already told Vick that he is not obligated to accept Vick's plea deal. He is expected by the commentators to give Vick closer to the maximum sentence, if not the maximum.
Yes, Vick appears to be genuinely sorry. But that's not extraordinary -- he should be sorry. He should be very sorry. He let a lot of people down. He engaged in a particularly revolting crime -- dog fighting. When caught, he initially lied. Yes, he has a great deal to be sorry about.
Yes, he appears to be cooperating with law enforcement to help close down other dog fighting rings. But that's not extraordinary -- he should share what he knows as part of his debt to society.
Too many criminals are not getting any prison time at all because of plea deals, and too many other criminals are not getting the sentences their crimes warrant.
NOTE: You have to subscribe to Find Law to read their briefs, but subscription is free.
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