Category Archives: Law: Criminal Law

In an otherwise uninteresting 10th Circuit decision affirming the conviction of a Ponzi-schemer behind those ‘get rich stuffing envelopes at home’ ads that pop up in magazine classifieds, we learn the alarming statistic that more than 100,000 people believed — or were desperate enough to make themselves believe — that someone would pay them two or three dollars to put a one-page flyer in an envelope.

(Via Decision of the Day: The Truth About Envelope-Stuffing Jobs.)

Today Judge William G. Young issued a 125 page opinion in US v. Kandirakis that is going to be an instant classic in sentencing law, a subject much roiled by the Supreme Court’s weird and fractured decision in United States v. Booker, 543 U.S. 220 (2005).

Basically, Judge Young holds that the entire system of federal sentencing is an illegal, unprincipled mess. Which it is. But can you say that? Apparently you can. Here’s just a tiny taste from the text at footnote 41 of the opinion,

That our laws routinely require a defendant’s sentence to be based upon what a judge believes an offender “really” did, as opposed to the actual crime of which he was convicted by the jury, is nothing less than offensive — let alone unconstitutional.

Then the footnote:

A recent, appalling example is found in an unpublished, per curiam opinion of the Eighth Circuit. United States v. Rashaw, No. 05-1839, 2006 WL 688041 (8th Cir. Mar. 20, 2006). Rashaw had been convicted “on two counts of being a felon in possession of a firearm and of one count of possessing an unregistered firearm.” Id. at *1. The district court in calculating the Guidelines, however, set the Guidelines offense level based on “evidence” that Rashaw had, in another incident and with another gun, committed a double murder. Rashaw had never been charged with these crimes, much less convicted. Id. The resulting Guidelines range being higher than the statutory maximum, the court sentenced Rashaw to three consecutive ten-year terms. Id. The Eighth Circuit affirmed this sentence as reasonable. Id. The disposition of Rashaw is scandalous and shameful. Justice Scalia, for the majority of the Supreme Court, had written in Blakely of an eerily similar hypothetical when making a reductio ad absurdum argument refuting “[t]hose who would reject Apprendi”. Blakely, 542 U.S. at 306. That such an appalling result can be “reasonable” under Remedial Booker speaks volumes about the perversity of that decision in specific and of “real conduct” sentencing in general.

If you have any interest in sentencing policy, you need to read this one.

18% of DC criminal trials are conducted in total secrecy.

“During the past five years, 469 cases in U.S. District Court in Washington, D.C., have been prosecuted and tried in complete secrecy, with no public knowledge even of the cases’ existence and no way for the public to challenge the secrecy,” write Kirsten B. Mitchell and Susan Burgess, reporters with the Reporters Committee for Freedom of the Press.

Burgess and Mitchell found the cases by “searching the court’s entire civil and criminal docket for the past five years. During the five-year period ending Dec. 30, an average of 18 percent of nearly 3,000 criminal cases were not docketed in Washington’s U.S. District Court — one of 94 federal courts nationwide. Undocketed civil cases were so few — 65 of more than 12,000 — as to be statistically insignificant.”

The Burgess/Mitchell article said that “most off-the-docket criminal cases were kept off the public docket after prosecutors asked judges to seal the cases, according to those who handle such cases.

“While Justice Department guidelines recognize a strong presumption against closing criminal proceedings and outline limited reasons allowing for closure, they don’t specifically address nonpublic docketing.

“Both the department’s arguments for and the judge’s approval of sealing an undocketed case are shielded from public view, making it impossible to know whether the guidelines are followed. What’s more, the U.S. Attorney’s Office in Washington does not monitor how many requests it makes to seal cases or how many requests are approved.

(Alex Kingsbury at Nieman Watchdog)

One more step down the road.

A reader writes:

Miami Herald reports (only in their Spanish language edition) on 1/4/2006 that Posada Carriles is perhaps soon to be released from detention by US Immigration, with no action taken by the Justice Department on the extradition requests by Venezuela.

There has been no known English-language coverage in the US!

One of the Venezuelan lawyers has commented publicly following the Herald’s quiet report.

This isn’t a case I’ve followed beyond reading the accounts in the local papers, so I’m afraid I don’t feel very well informed about it. But given that there indeed don’t seem to have been many reports about recent developments in the English language press (outside of the Cuban media, which doesn’t really count for these purposes), it seemed worth mentioning.

Speaking of the SFLA Blog, I see via it that one of my colleagues won one: Ricardo Bascuas prevailed over a peculiar, peevish, pettifogging, and petty attempt by local prosecutors to block two amicus briefs in the en banc phase of the so-called “Cuban Five” case. (The underlying issue is whether the defendants, accused of being Cuban spies, could get a fair trial in the surcharged anti-Castro atmosphere of Miami, especially after it was whipped up against them by massive pre-trial publicity; the collateral issue on which Rick prevailed was just whether National Lawyers Guild, the National Association of Criminal Defense Lawyers, the National Association of Federal Public Defenders and the Florida Association of Criminal Defense Lawyers would be allowed to file amicus briefs, something which is just about always routinely allowed for parties with the interest and energy to do so.)