Friday, November 26, 2010

Payoff Games

United States v. Kalish, No. 08-3374-cr (2d Cir. November 24, 2010) (Newman, Winter, Lynch, CJJ)

Defendant Kalish was convicted of mail and wire fraud in connection with an advance loan fee scheme. The district court ordered him to pay $ 1.2 million in restitution, and also ordered a $ 3.9 million forfeiture.

On appeal, Kalish claimed that the district court should have reduced the forfeiture amount by the amount of the restitution order. The circuit affirmed, finding that the claim was premature. There is no error in imposing both a forfeiture order and a restitution order, since each is authorized by a separate statute.

However, once “some payment has been made by way of restitution, a defendant would be in a position to argue that such a payment should be a credit against any then remaining forfeiture amount.” Since the forfeiture amount represents “ill-gotten gains,” it is “at least arguable” that any money returned to a victim has reduced the amount of “ill-gotten gains” remaining in the defendant’s possession. But Kalish did not claim that he had made any restitution payments, so the court did not need to “decide whether such an argument would prevail.”

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Blame Canada

United States v. Miller, No. 08-1152-cr (2d Cir. November 23, 2010) (Straub, Parker, Livingston, CJJ)

In 1994, Michelle Miller had a son, Robbie, with her former high school boyfriend; they later married. Shortly thereafter, the marriage dissolved. A Vermont family court awarded Miller legal custody of Robbie, and gave the father visitation rights. The following year, Miller, then living in Massachusetts, obtained an ex parte temporary abuse prevention order, which also gave her, temporary full custody of Robbie pending a hearing. Eventually, the Massachusetts court gave the father limited visitation rights in the form of six supervised visits. After the first visit, however, Miller began moving Robbie around to keep him away from the father. In 2001, she took Robbie to Canada knowing that under the Massachusetts court order the father was entitled to at least five more supervised visits.

Miller obtained permanent residency in Canada and, in a Quebec court, sought custody of Robbie. The Canadian courts eventually gave her permanent custody. In the meantime, however, the father had begun parallel proceedings in the United States to try to regain custody of Robbie. In 2002, a Vermont court awarded full custody to the father.

In December of 2002, the United States Attorney’s Office for the District of Vermont charged Miller with international parental kidnapping, in violation of 18 U.S.C. § 1204(a). Miller returned to Vermont in 2006 and was arrested. While in custody, she moved in a Vermont state court for recognition of the Canadian custody order in her favor. The court denied that request, and Miller appealed to the Vermont Supreme Court. While that appeal was pending, the criminal case went to trial. Miller moved to introduce evidence of the pendency of her appeal, but the district court concluded that the evidence was irrelevant, and denied the application.

Miller’s trial took place in July of 2007, and focused on two court orders that were in effect during the period covered by the indictment - the Massachusetts Family Court order awarding limited visitation rights to the father and the later Vermont order granting him full custody. The jury convicted her but, more than one year later, the Vermont Supreme Court held that, while the family court had jurisdiction when it granted the father full custody, it should have deferred instead to the Canadian courts.

Miller pursued this same claim on appeal, but a divided panel affirmed.

The majority, applying the extremely deferential standard of review of evidentiary rulings - abuse of discretion and “manifest error” - held the district court did not err. Miller’s appeal of the Vermont family court order giving the father full custody of Robbie “was not relevant because it was not of consequence to the determination of any material fact or issue in dispute at trial.”

The fact at issue was Miller’s intent. The government had to prove that she took Robbie from the United States with the intent to obstruct the lawful exercise of Miller’s parental rights. Miller argued that evidence of the pending appeal would have allowed her to raise a doubt as to whether the father even possessed lawful parental rights at the time she took Robbie to Canada. But the majority disagreed.

First, when Miller went to Canada the order that was the subject of the pending appeal did not even exist, thus the appeal “would not possibly be probative” of the father’s rights at the time she went to Canada. Nor was it probative of the father’s rights during the time period charged in the indictment. At that time, those rights stemmed in part from the Massachusetts Family Court order granting him supervised visits. The appeal of the Vermont order in the father’s favor had no affect at all on the rights created by the Massachusetts order.

The appeal only affected the order that the father obtained in Vermont granting him full custody. But even as to that order the pending appeal was irrelevant. The rights that order granted the father came into existence when the order was issued. The mother never sought a stay of that order, thus once it was issued the mother was required to surrender the child to the father, which sh did not do. And that Miller was appealing the order was not, and could not be, evidence to the contrary since the “pendency of the appeal could not itself negate the existence of [the father’s] parental rights while the order was still in effect, which it was during the period of the indictment.”

Evidence of the pending appeal showed, at most, Miller’s disagreement with the father’s rights, but this was “neither relevant to their existence during the period of the indictment nor a legal defense to the crime charged.

Finally, any error here would have been harmless. There was “no serious claim that the district court’s evidentiary ruling had any likelihood of affecting the outcome of the case.” The evidence against Miller was “overwhelming,” and the prosecution was able to “conclusively establish” Miller’s guilt solely based on the Massachusetts order that was not affected by the Vermont appeal.

Judge Straub dissented. In his view, the evidence “tended to show that [Miller] lacked the specific intent required by the” statute and thus it was error to preclude it. Relevancy is determined under a “very low standard” - evidence is admissible if it has any tendency to make any fact in issue more or less probable than it would be without the evidence, regardless of the length of the chain of inferences necessary to get there.

Unlike the majority, which focused on whether the father had valid parental rights, the dissent focused on the mother’s intent. “Evidence of the pending Vermont appeal was relevant to [her] defense because it tend[ed] to show that [she] took Robbie to Canada with intent of vindicating her own parental rights, rather than with intent of obstructing” the father’s.

Here is the chain of inferences cited by the dissent: First, the appeal was from a Vermont lower court order denying the mother’s motion for recognition of the Canadian order that gave her custody. The existence of the appeal of this order suggests that Miller attempted to use the Canadian proceedings to vindicate her own parental rights in Vermont. That attempt, along with the evidence of the Canadian court proceedings made it more likely that she originally brought Robbie to Canada and kept him there with the intent of obtaining custody in Canada and the using the Canadian proceedings to vindicate her own parental rights in the United States. These facts made it less likely that she took the child to Canada with the intent of obstructing the father’s parental rights. Thus, the Vermont appeal had some tendency to make a fact in issue less probable.


PC World

United States v. Douglas, No. 09-4955-cr (2d Cir. November 23, 2010) (Miner, Katzmann, Hall, CJJ) (per curiam)

Defendant Douglas was trolling a fetish Internet chatroom, and struck up an acquaintanceship with a Vermont police officer posing as “Liz,” a thirty-eight-year-old divorced nurse with a thirteen-year-old daughter, “Anna.” Douglas tried to persuade Liz to bring Anna to him in Alabama so that he could “train” her to be a “sex slave.” There was a lot of back-and-forth, which included Douglas’ offering to help pay for the trip and find Liz a job near where he lived.

Douglas was convicted, after a jury trial, of violating 18 U.S.C. § 2422(b) by using an interstate facility to entice a minor to engage in criminal sexual activity. On appeal, he argued that the statute did not apply to him because he communicated only with a person he believed to be an adult. The circuit rejected this argument and affirmed.

The court noted that the statute prohibits the attempt to entice or the intent to entice, and not an intent to perform a sexual act following the persuasion. And the enticement efforts need not be “directed to a minor in all cases” in order for the enticement to occur. Persuading a minor’s adult guardian to lead the child to participate in sexual activity also violates § 2422(b).

Saturday, November 06, 2010

It’s Not In The Timing

United States v. Davis, No. 09-3636-cr (2d Cir. November 5, 2010) (Newman, Raggi, CJJ, Rakoff, DJ)

Williams Davis was convicted, after a jury trial, of inter alia, producing child pornography, and was sentenced to 120 years’ imprisonment. This opinion address the novel issue of whether the defendant must know that the pornography will be transmitted in interstate commerce at the time he produced it.

This was an unusually ugly case. Davis, who had been convicted in 1991 of sexually assaulting his daughter and niece, and in 2007 of kidnapping and raping a twelve-year-old girl, also sexually abused his step-daughter in 2006, and apparently photographed some of the activity. When his wife found out about the abuse she evicted him from their apartment, but Davis left behind a safe. Eventually, the wife gave the safe to police officers, who opened it and found CD’s containing the child pornography.

Davis was convicted of violating 18 U.S.C. § 1951(a) which makes it a crime to induce a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct, if the defendant knows or has reason to know that the visual depiction will be transported or transmitted in interstate or foreign commerce or mailed.

During deliberations, an extremely astute and diligent jury, “identifying an issue that had escaped the attention of trial counsel” - neither side had requested a jury instruction on this issue - “and that apparently has not been adjudicated in any other court,” asked whether § 2251(a) requires the defendant to know that the visual depiction will be transported in interstate commerce “at the moment the picture is produced or whether" that knowledge can come about later.

The district judge replied that the defendant “did not have to know or have reason to know” that fact “at the moment that the visual depiction was produced.” All that was required, the judge went on, was proof beyond a reasonable doubt “that the defendant knew or had reason to know that the visual depiction at issue would be transported in interstate or foreign commerce or mailed at any time prior to ... the date on which the visual depiction was recovered” by the police.

On appeal, the circuit, which seemed to be striving mightily to affirm, did so.

First, while the court agreed that the “words of the statute do not yield a clear answer” because the statute “neither explicitly requires knowledge of future interstate transmission to exist at the time the visual depiction is produced nor explicitly contemplates that the knowledge might be” acquired later, it refused to apply the rule of lenity because, according to the court, the “simple existence of some statutory ambiguity” is “not sufficient [its] warrant application.”

Thus while there was no legislative history on this point, the circuit concluded that not requiring contemporaneous knowledge was consistent with a general congressional purpose to “reach those who produce child pornography and thereafter affect interstate commerce,” even though this finding was made when Congress amended other parts of § 2251(a).

The court also supported its holding by looking closely at the statute itself. It pointed out that the statute has three clauses. The first is the one at issue here. The second covers production of child pornography using materials previously shipped in interstate commerce, and the third covers visual depictions that have themselves been transmitted after their creation. The court pointed out that both the second and third clauses “specify events that need not be contemporaneous” with the production of the images. The second clause covers interstate shipments that occurred before the images were made, while the third obviously covers interstate shipments after the depiction is made. Thus, under the “whole act” rule, the court decided that the “first clause ... best fits with the second and third clauses if a contemporaneous knowledge element is not read into the statute.”


It is often remarked that bad facts make bad law. And here, while it is difficult to muster much sympathy for Davis, the reasoning supporting this opinion is unusually thin.

First, the court’s explanation of why the rule of lenity should not apply seems just wrong. In remarking that a “simple ambiguity” is not enough, the court relied on a Supreme Court case, Muscarello v. United Sates, 524 U.S. 125, 138 (1998). But the language that the court relies on is, at best, incomplete. Muscarello construed the word “carry” in 18 U.S.C. § 924(c) to include carrying a firearm in a vehicle, instead of limiting it to carrying a firearm on one’s person. And, while it is true that the Court rejected the rule of lenity there, Muscarello is nothing at all like this case. First, there the statute actually contained language that covered the question at issue - the word “carry.” The statute here, by contrast, says nothing at all about the question at issue. Moreover, the Court in Muscarello settled on what it called the “generally accepted contemporary meaning of the word carry,” which would suggest that the Court did not even truly view the statute as ambiguous at all, and that its discussion of the rule of lenity was just a response to the dissent, and hence dicta. That is another important distinction; here, the circuit began by agreeing that the statute was ambiguous. Finally, the Muscarello Court suggested that the rule of lenity would apply if all the court can do is “guess as to what Congress intended.” This case comes pretty close to that: the statute is completely silent on the issue, and only the legislative history contains only general language about Congress’ disdain for sex offenders in a finding made after the relevant portion of the statute was enacted. If the rule of lenity does not apply when the statute is silent and there is no direct legislative history, when does it ever apply?

The circuit’s analysis of the statue is equally unconvincing. If clause two covers interstate commerce before the depiction is made, and clause three covers interstate commerce after the depiction is made, it would seem perfectly consistent with this scheme to construe clause one as interstate commerce during the creation of the depiction: before, during and after makes more sense than before, after and after. The court's unelaborated mention of the so-called "whole act" rule hardly supports its contrary reading. That rule simply requires that statutes be read to give effect to every provision, rendering none superfluous, and that each section be read in the context of the whole statute, not in isolation. But that rule gives no real substantive guidance here; under it, the alternative reading of the statute described above is just as convincing as the court's.

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