Tuesday, November 24, 2009

Trophy Catch---SORNA Victory

United States v. Cain, No. 07–4535 (6th Cir. Oct. 13, 2009). Judges Guy, Rogers, and Griffin.

Facts: Defendant was convicted of attempted rape in Ohio in 1998. Defendant had to register as a sex offender. July 27, 2006, SORNA became law. That summer, the defendant wanted to move to Georgia. He met with his parole officer in Ohio. He then left for Georgia, but did not update his registration in either Ohio or Georgia. Ohio issued a warrant. On February 28, 2007, the U.S. Attorney General promulgated a regulation specifying that SORNA applied to people convicted prior to July 27, 2006. The defendant was arrested in Georgia in 2007. Ohio brought charges against the defendant, but these charges were dropped and the defendant was prosecuted federally.

Procedure: Defendant filed a motion to dismiss the indictment. After the government responded, however, the defendant decided to plead guilty and entered a conditional plea, preserving his right to appeal an adverse determination on his motion. The district court sentenced the defendant to five months of incarceration with credit for time served.

Issue: Was the defendant a person who was required to register under SORNA prior to the AG promulgating the regulation regarding registration by those convicted prior to SORNA.

Holding: Indictment dismissed because 42 U.S.C. § 16913 required the AG to issue regulations before SORNA applied to sex offenders convicted prior to SORNA’s enactment.

* Plain meaning of § 16913(d) requires AG to make specifications before SORNA applies to offenders whose convictions predate SORNA.

* Congress did not make it the default position that SORNA applies unless the AG excused compliance. Rather, SORNA did not apply to certain individuals until the AG specified that it did.
* Even if § 16913(d) were ambiguous, ambiguity would be construed in favor of defendant.

* Also, the AG’s regulation could not take immediate effect for defendant because the DOJ did not provide good cause to dispense with notice and comment or with the 30-day waiting period (required by Administrative Procedure Act). Indictment covered period ending March 28, 2007, less than 30 days after promulgation of reg and a month before the end of the comment period. AG’s failure to comply with APA means defendant was not subject to the reg during period covered by indictment.

Judge Griffin dissented.

* SORNA applied to defendant. Violation indisputably occurred after SORNA enacted.

* Immediately upon enactment, SORNA applied to individuals whose convictions pre-dated it. "Shall have authority" language in § 16913(d) is permissive—not mandatory—so AG not required to promulgate regulations.

* Even if SORNA’s application to individuals with convictions pre-dating SORNA was not established until AG issued reg, majority still mistaken regarding the AG failing to demonstrate good cause to dispense with the 30-day notice-and-comment period. Public interest in safety gave good cause. Reg was valid and applicable to defendant.

Monday, November 23, 2009

Search and Seizure Resource

Great outline. Thanks to the 9th Cir./Oregon crew for putting together.

Really worth a look!

Thursday, November 19, 2009


Interesting story today about police recruiting CIs. Girl was 20 years old, no drug ties, got picked up for not paying traffic tickets and driving while license suspended. Police said she could avoid a night in jail by becoming a drug CI.

Interesting discussion of CIs, recruitment, the risks they take, etc.

Girl ended up calling her dad, a labor lawyer, who got upset and got the CI agreement voided.

Interesting, quick read.


Wednesday, November 18, 2009

Intended Loss Amount

Unpublished opinion in United States v. Newson, No. 08–6080 (6th Cir. Nov. 16, 2009). Panel of Judges Moore, Cook, and Ludington (E.D. Mich.). Defendant pleaded guilty to document fraud (18 U.S.C. § 1028(a)(7)). Sentence of 30 months.

Because of lack of factual record regarding the defendant’s intent, the court vacated the sentence and remanded. Defendant used another individual’s Social Security number to complete two separate credit applications in an attempt to purchase automobiles. The first attempt failed when the salesman became suspicious and contacted the individual whose Social Security number the defendant was using. The defendant did not complete the second attempted purchase for unknown reasons. She simply left the dealership after completing the credit application. (The defendant also used the Social Security number to access credit at several retail stores.)

The PSIR calculated the total intended loss as $44,600.03. This total led to a six-level enhancement under Guideline Section 2B1.1(b)(1)(D). Offense level was 13, criminal history IV, range of 24 to 30 months.

Issue: should the district court have included the value of the second automobile in the loss calculation? If an amount is to be included in intended loss, a defendant must have subjectively intended the loss and the defendant must have completed or been about to complete, but for interruption, all the acts necessary to bring about the loss.

Conclusion: not clear that defendant was going to complete the purchase of the second vehicle but for an interruption. Defendant said she completed the credit application and then abandoned her attempt to buy the automobile. She offered to prove, at the sentencing hearing, that the dealership personnel offered her possession of the vehicle, but she refused it. The district court rejected her offer of proof on the point. Appellate court concluded the district court’s refusal was clear error. If defendant refused the vehicle with the intent to abandon the scheme, the value of the vehicle should not have been included in the intended-loss calculation. In such a case, she would not have subjectively intended the loss. Nor would she have been about to complete all the acts necessary to bring about the loss.

Without the value of the second vehicle, the enhancement would have been only four levels.

Friday, November 13, 2009

Entrapment and Pre-Trial Delay

First, I apologize for my recent lack of posting. It has been a little hectic. I also apologize because this post will be quite brief—again, just a tad hectic.

This week, we have United States v. Schaffer, No. 09–3053 (6th Cir. Nov. 12, 2009). Panel of Chief Judge Batchelder, and Judges Daughtrey and Van Tatenhove (E.D. Ky.). Defendant caught in government sting operation—conspiracy to obtain military secrets and laser missile technology from a DOD contractor. Events began in July 2002. Indictment returned February 27, 2008. Defendant brought several pre-trial motions, including a motion to dismiss. The district court dismissed the portion of the indictment related to interstate transportation of stolen property, but otherwise denied the motion to dismiss. The defendant entered a conditional plea.

The Court of Appeals affirmed the district court’s decision. I will hit on the sections related to pre-indictment delay and entrapment. To sustain a pre-indictment-delay claim (under the 5th Amendment), a defendant must show substantial prejudice to his or her right to a fair trial and that the delay was intentional and used by the government to gain a tactical advantage. Courts will not presume prejudice. Here, the defendant failed to make a showing of actual prejudice.

In terms of entrapment, it is seldom appropriate for a district court to grant a motion to dismiss based on the defense. Defense generally goes to defendant’s state of mind, so it is an evidentiary question. District court here correctly concluded that issue could not be resolved until after evidence presented at trial. Question for jury—not court.