Fifth Circuit admonishes parties not to phone in sentencing hearings.

Criminal proceedings are solemn events; a phone call is not an appropriate means to conduct a solemn event. That was the warning issued by the Fifth Circuit in United States v. Ramos-Gonzales, where the Court was again reviewing a special condition of supervised release following a resentencing. The Court explicitly noted that the absence of authority for conducting a resentencing via telephone and advised against this procedure in the future.

The problems with using a telephone procedure were expounded upon in Judge Jones’ concurring opinion. Using a telephonic conferences “reflects poorly on the dignity and integrity of federal court proceedings[,]” as well as complicating matters should the defendant need to ask counsel a question or the AUSA need to present evidence. The possibility of one of the parties multitasking during the phone was also a concern.




The Supreme Court’s Narrowing of Prosecutable Public Corruption

The Supreme Court has narrowed the public corruption cases subject to prosecution by failing to consider the appearance of corruption rationale. Quintessential corruption evokes a politician trading his vote for a briefcase stuffed with cash. Corruption? Absolutely. But what about the politician that hosts a dinner at the Governor’s mansion and sets up meetings with his staff, which helps out a wealthy constituent; a wealthy constituent who just happened to gift the politician a Rolex and lavish outings? Appearances suggest corruption even if no final legislative or administrative action can be identified.

Plato advocated a strict no gifts rule for public officials. This was the safest approach given the difficulty of segregating rewards for good versus evil deeds. Although Plato’s rule has not been adopted, the reasons underlying it have appeared in campaign finance cases. In Buckley v. Valeo, the Court found any effect on First Amendment rights due to individual contribution limits was justified by the government’s interest in preventing actual corruption and the appearance of corruption. In doing so, the Court noted both that the scope of actual corruption (i.e., quid pro quo for a larg campaign contribution) could never be readily ascertained and of almost equal importance to battling actual corruption was avoiding the appearance of improper influence to safeguard the public’s confidence in our governing system. The Court had previously addressed the appearance of corruption in a case involving a conflict of interest in a federal contract, observing that when politicians “engage in activities which arouse suspicions of malfeasance and corruption” it threatens to shatter faith in those who govern, thereby “endanger[ing] the very fabric of a democratic society, for a democracy is effective only if the people have faith in those who govern.” United States v. Miss. Valley Generating Co., 364 U.S. 520, 562 (1961).

Despite the appearance of corruption in campaign finance cases, it has been absent in criminal corruption cases. An absence that has led to an unjustifiably narrow statutory interpretation of criminal public corruption laws. First, in United States v. Sun-Diamond Growers of Cali. the Court invalidated a conviction for the Secretary of Agriculture accepting illegal gratuities. The Secretary had accepted over $5,000 worth of gifts from an agricultural interest group, including, among other things, tickets to the U.S. Open Tennis Tournament, luggage, and a crystal bowl. The Court concluded that simply showing the gratuity was given due to the recipient’s official position was insufficient, there must be a link between the thing of value and a specific official act. The Court’s rationale included two problematic pronouncements. First, the Court acknowledged it was “linguistically possible” for the text (“for or because of any official act performed or to be performed”) to mean official acts in general without specifying a particular one, but found the more natural meaning was for or because of some specific official act.  Second, the Court approved of some gifts to public officials, noting it would be “peculiar” to criminalize “token gifts” such as a champion sports team giving a replica jersey to the President on a White House visit.

The problem with these pronouncements is that if the appearance of corruption was considered then the opposite conclusion should be reached on both points. Actual corruption requires a particular act be specified,  but such a requirement largely excludes the appearance of corruption. Appearance of corruption often resides in generalities. When it comes to appearances the sum is often greater than the parts. We don’t think much of a politician that receives a baseball cap from a high school, but suspicions are aroused by a politician who accepts World Series tickets, a new watch, and trips from an interested party. Maybe no single gift to the politician was eyebrow raising in and of itself, but the accumulation of these gifts is suspicious.

The Court further narrowed conduct eligible for public corruption charges in McDonnell v. United States. McDonnell, Virginia’s governor, received a Rolex, a $10,000 gown for his wife, cash, and loans from the wealthy CEO of a Virginia nutritional supplement company. Governor McDonnell set up meetings for the wealthy CEO with various public servants/offices who were in a position to help the CEO’s business. To hold McDonnell criminally responsible there needed to be proof he committed (or agreed to commit) an official act in exchange for these gifts. Official act was defined in the statue as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s capacity, or in such official’s place of trust or profit.” The dispute centered on the bolded phrases.  The Court acknowledged both “any decision or action” and “any question [or] matter” could be interpreted broadly. Any question or matter could conceivably encompass any relevant issue. Likewise, any decision or action could cover a great deal of conduct, including setting up a meeting. Both interpretations, however, were rejected. Any decision or action could not be so broad as to include hosting an event or speaking with interested parties, because in Sun-Diamond the President could host an event for a sports team and the Secretary of Agriculture could give a speech at an interest group’s event. Neither could any question or matter be read broadly given the list’s inclusion of cause, suit, proceeding or controversy. The latter terms include a more formal exercise of power. The Court settled on a definition that eliminated the breadth of the generic terms (question and matter) to conclude an official act requires “a formal exercise of governmental power similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee.”

There are two problems with McDonnell. Firstthe Court made the mistake of applying Sun-Diamond‘s dicta approving of “token gifts” for certain governmental acts to approving of gifts for certain governmental acts. Second, the Court mandated that the politician’s act or decision involve a formal exercise of governmental power. Both propositions erode the ability to address the appearance of corruption. The Court’s requirements largely exclude the exchange of gifts between politicians and parties seeking benefits for informal governmental functions. In addition, the Court’s specificity requirements have made it difficult to prosecute all but the most blatant corruption. If ever there was an instance where a public official was engaged in conduct that gave the appearance of corruption it was McDonell, but the Court’s approach made it less likely such conduct could be punishable.

The refusal to consider the appearance of corruption as a principle underlying anti-corruption laws represents a disconnect in corruption jurisprudence and has led the Court astray on criminal public corruption. The Court is cognizant of and sensitive to the appearance of corruption in campaign finance, but pays no heed to this type of corruption in criminal cases. In a time when the American public’s confidence in our government is at historic lows, the Court has laid down standards that make it easier for public officials to abuse their position of trust. The exchange of  valuable gifts between politicians and interest groups is low risk. So long as the gifts cannot be linked to a particular formal exercise of power the chances of criminal liability are slim.

The Court’s calculus assigns weight to the wrong considerations. Worries about whether the President can accept  a Super Bowl jersey during a ceremonial visit or a constituent’s apple pie at a town hall are misplaced. The public does not derive a benefit from these gifts, but the public suffers the harm from legitimizing gift giving to public officials. At what point does a gift cross from token to corrupting? Is it the apple pie at a town hall, the free lunch at a conference, the extra seat at a baseball game, the golf retreat, or the loan. The impossibility of disentangling innocuous gifts from corrupting gifts should make accepting gifts a worrisome proposition.

Less formal exercises of governmental power should not be dismissed in public corruption cases. In Citizens United, Justice Stevens noted that the difference between selling votes versus selling access is a matter of degree, not kind. The public loses when it’s officials prioritize or attend to issues important to those who give gifts, because public officials have a finite amount of time, energy, and resources. Governor McDonnell used his time, office, and subordinates to help out the CEO who gave him $175,000 in gifts. What queries or issues went unanswered or unattended to accommodate the CEO’s agenda? A public servant’s duties encompass more than just votes, their culpability for self-enrichment should encompass more than just votes too.

Corruption encompasses more than the most blatant bribes, yet the Supreme Court has limited the criminal corruption statute to those egregious cases. This result can, and should, be avoided by including the appearance of corruption as a variable in its statutory interpretation.

Thoughts on the Ninth Circuit’s Ruling on Trump’s Executive Order

The Ninth Circuit issued a per curiam decision denying the federal government’s request to stay the Temporary Restraining Order, which halted enforcement of President Trump’s Executive Order. The opinion was very narrow and did not address the underlying merits. Thoughts below, full opinion here.

Unsurprisingly, the Ninth Circuit strongly rebuked the federal government’s claim that the Executive Order was unreviewable. And–quite understandably–seized the opportunity to utter statements such as this claim “runs contrary to the fundamental structure of our constitutional democracy.”

The rest of the opinion contained very narrow findings. The explanations surrounding those narrow findings contained some interesting points that could be issues as the litigation proceeds, including:

  1. Can the states bring these claims? The Ninth Circuit was careful in its wording on the standing argument; twice couching their findings with the qualifier that the States’ showing of standing was good enough at this very preliminary stage. The Court’s analysis of standing itself was a bit confusing. The Court declined to even address the States’ argument that it had standing based on their ability to advance the interests of their citizens as parens patraie. Instead, the Court simply found the harm to public universities sufficed to show standing (at this preliminary stage).  According to the Court, the Executive Order’s effects harmed the teaching and researching missions of the public universities and the third party standing doctrine allowed the schools to assert the rights  of students, scholars, and faculty affected by the Order. As the case progresses, this explanation is likely too vague to withstand exacting scrutiny. The Justices can be notorious sticklers when it comes to standing limitations and these limitations are more difficult to clear where the plaintiff is not herself the object of the government action. (See e.g., Lujan v. Defenders of Wildlife). But, the States did indicate at oral argument they intend to submit more evidence supporting standing at the preliminary injunction hearing. As the litigants have more time to flesh out their cases, standing could be clearly established for all the claims or be found wanting as to some of the claims.
  2. Which individuals affected by the Executive Order are entitled to due process? The Court found the federal government failed to establish a likelihood it would prevail against the States’ due process claims (at this stage of proceedings). In doing so, the Court made two pronouncements concerning due process. First, the Court declared the Due Process Clause protects all persons in the U.S. (whether lawful, unlawful, or temporary) and certain aliens attempting to reenter the United States after travelling abroad. The Court cited to Supreme Court language construing due process rights for lawful permanent resident aliens, but did not explicitly specify which aliens fell within this category. Second, the Court identified five categories of individuals for whom the states could have “potential claims regarding possible due process rights….” These included: (a) lawful permanent residents, (b) individuals in the United States (even if unlawfully), (c) non-immigrant visa holders who have been in the United States but temporarily departed or wish to temporarily depart, (d) refugees, and (e) applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert. This list indicates potential trouble for the States. Individuals unlawfully in the U.S. have due process rights, but it is unclear how those rights are implicated by this Executive Order. What cognizable interest of those unlawfully in the United States is implicated by an Executive Order prohibiting entry into the United States? As to non-immigrant visa holders, the government indicates this merely permits the individual to travel to a U.S. port of entry and request permission to enter, it does not entitle the holder to entry into the U.S. (click here). It seems plausible that a court could apply a bitter-with-sweet approach, finding these individuals accepted  the benefit of a visa and must accept the restrictions on that benefit. The fifth class cited by the Court includes applicants who have a relationship with a U.S. institution who might have rights of its own. This class is somewhat bizarre. It seems rather novel that the rights of an institution could somehow bestow constitutional due process rights on non-U.S. citizens outside the United States.
  3. What impact will the Executive Order’s purpose play in the religious discrimination claims? The Court was particularly cryptic on the religious discrimination issue, noting that the States’ claims “raised serious allegations and presented significant constitutional questions.” But, the Court demurred on the substantive aspects, only indicating that evidence beyond the face of the challenged law to show the law’s purpose may be considered in evaluating  the Establishment and Equal Protection Clause claims.
  4. What impact will the President’s discretionary authority have? Apart from acknowledging that “courts owe considerable deference to the President’s policy determinations with respect to immigration and national security,” the Court did not provide much analysis on executive power. There was no mention of the statutory battle over the Immigration and Nationality Act, a provision of which authorizes the President to suspend entries into the U.S. for national interests. Also, during oral argument, Judge Clifton asked the States to differentiate between their case and the President’s ability to halt immigration from other countries, including past instances where the President has actually done so. If the States want to prevail, they will need to develop a satisfying answer as to why the President generally has the power to halt immigration, but cannot exercise it in this specific manner.
  5. Did the Ninth Circuit believe the Executive Order was constitutionally defective? On one ancillary issue, the breadth of the Temporary Restraining Order,  the Ninth Circuit levied a somewhat unfair slight to the federal government that indicates the answer is yes. The federal government had argued the TRO was overbroad and requested the terms be narrowed to only those individuals involved in the suit. The Ninth Circuit acknowledged “[t]here might be persons covered by the TRO who do not have viable due process claims,” but declined the request. The Court pronounced it was not their job to rewrite the Executive Order and provided a citation for the principle courts could decline to rewrite a statute to eliminate constitutional defects. The refusal to fashion language that would allow the Executive Order to be enforced against anyone coupled with the tone of that rejection could indicate the Court believed the Order was constitutionally deficient. It was also a bit unfair. The federal government was not asking the Executive Order be rewritten, but that the TRO-a federal judicial order under the Court’s purview-be more narrowly tailored. In the alternative, the refusal could simply be because this was a highly visible public case being heard on an emergency basis. The federal government’s requested language was not adequate and the Court did not have time to draft its own revision of the TRO.

Next up will likely be the preliminary injunction proceedings in the district court, unless the federal government appeals this denial.









Argument Preview: Trump’s Executive Order on immigration

The Ninth Circuit will hear oral argument in the motion to stay the Temporary Restraining Order pending appeal in the case involving Trump’s Executive Order on February 7 at 3pm PST. Below is a summary of the issues involved in this motion.

President Trump issued an Executive Order on January 27, 2017 that prohibited certain immigrants from entering the United States. The states of Washington and Minnesota quickly filed suit challenging this Order, asserting 10 claims. Six were statutory, based on the Immigration and Nationality Act, Foreign Affairs and Reform Act, Religious Freedom Restoration Act, and the Administrative Procedure Act. The other four were constitutional claims, including an Equal Protection and Due Process claim under the Fifth Amendment, an Establishment Clause claim under the First Amendment, and a Tenth Amendment claim.

The Washington District Court entered a Temporary Restraining Order that halted enforcement of 5 of the Executive Order’s provisions nationwide. These five provisions included: (1) the 90-day suspension of entry into the U.S. for immigrants and non-immigrants of countries Congress identified as having higher associated risks with terrorism, (2) the 120-day suspension of the U.S. Refugee Admissions program, (3) the prioritization of refugee claims on the basis of religious persecution where the religion was a minority religion in the individual’s country once the refugee program resumed, (4) the indefinite suspension of Syrian refugees until sufficient changes ensured their admission was within the national interests, and (5) the provision permitting case-by-case exemptions to the 90-day suspension to the extent it prioritizes refugee claims of certain religious minorities.

The federal government has filed a motion to the Ninth Circuit Court of appeals asking the Temporary Restraining Order be stayed pending appeal. The federal government and states have filed motions arguing this issue (states’ response and federal government’s reply), as well as many interested parties filing amicus briefs (available here).

The motion to stay involves three central issues-jurisdiction, likelihood of success on the merits, and harm from the TRO.

1. Is there jurisdiction for the Ninth Circuit to hear an appeal of the TRO?

The states argue that this is a temporary restraining order, which normally is not appealable. The federal government, however, argues that this temporary restraining order should be treated like an interlocutory appeal of a preliminary injunction, which is appealable. In support, the federal government the adversarial hearing where both sides strongly contested the issue and the TRO’s indefinite length exceeds the ordinary duration of a TRO. The states contend this construction is untenable due to the TRO explicitly contemplating deciding the preliminary injunction. The states  suggested waiting for the preliminary injunction hearing, which would allow for full briefing and evidence.

2. Does the federal government have a high likelihood of success on the merits?

Three issues are contained within this question.

First, do the states have standing to assert these claims. The states have asserted two bases for standing-harm to proprietary interests and quasi-sovereign interests. The proprietary interests arise from students and faculty of their public institutions being prevented from travelling. The federal government argues this harm is too speculative and hypothetical to be a concrete injury. But, the states assert the government’s argument relies on speculative remedies to ameliorate real harms. The prospect the Order’s waiver provisions may allow faculty and students to return does not negate evidence that they have actually been prevented from traveling. As to the quasi-sovereign interests, the states claim precedent supports their ability to sue on behalf of their citizens and because of lost tax revenue. The federal government disagrees.

Second, how to interpret the Immigration and Nationality Act. Should the law’s anti-discrimination provision be read as a limit on the President’s ability to suspend entries or should the two provisions be read as applying to discrete steps in the immigration process (issuing visas vs. controlling entries). The states argue that the Executive Order singling out nationalities and religions runs afoul of the anti-discrimination provision. The federal government rebuts this by arguing the anti-discrimination provision only applies to issuing visas and does not limit the President’s power to halt entries into the United States.

Third, is the Executive Order constitutional. The federal government argues the President used express statutory authority to temporarily suspend a class of aliens from entering the US to permit an orderly review and revision of screening procedures to ensure that adequate standards are in place to protect against terrorist attacks. Its argument heavily relies on notions of executive power, including implications that this decision is immune from judicial review, and claims that the law is facially neutral as to religions. The states argue courts can, and have, reviewed immigration and national security cases, plus this Executive Order displays a discriminatory animus towards Muslims.

The other question concerning constitutionality is the class of individuals impacted by the Order. The federal government claims that lawful permanent residents are not included in the order, thus drastically narrowing or eliminating the due process concerns that may otherwise be triggered. The state, however, argues that the government has taken a “dizzying” amount of positions on this point, but the claims are not moot given that the text of the Order remains the same (i.e., the government could decide to enforce it against lawful permanent residents again in the future).

3. Will the federal government suffer irreparable harm?

The government identifies four harms it will suffer if the TRO remains in place; (1) it contravenes the considered national security judgment of the President, (2) harm from barring enforcement in a manner that intrudes on separation of powers, (3) harm from thwarting the legal effect of the public’s chosen representative, and (4) clouding the legal and factual distinction between non-resident aliens’ present status as inadmissible aliens not lawfully present in the U.S. and their desired status as aliens who were lawfully admitted to this country. The states counter that the district court correctly determined separating families, stranding university student and faculty members, and barring travel represented an immediate, irreparable harm. The TRO merely maintained the status quo, preserving against a sudden disruption that is often in the interests of all.

The federal government also suggests that at most, the injunction should be limited to those previously admitted aliens who are temporarily abroad now or who wish to travel and return to the U.S. in the future.

*Oral argument will take place at 3 pm PST, a live stream is available at this link.

Hunch vs. Inference-Fifth Circuit clarifies in finding an illegal stop

In United States v. Monsivais, the Fifth Circuit found that an officer’s conclusion of criminal suspicion must be based on an impermissible intuitive sense or feeling when that conclusion does not include an articulable connection to the facts. Since there was no articulable connection between the officers’ suspicion of Mr. Monsivais and the facts, Mr. Monsivais’s seizure violated the Fourth Amendment

The Seizure

Officers spotted Mr. Monsivais walking away from a disabled truck on a Texas highway. After pulling over to perform a welfare check, the officers spoke with Mr. Monsivais for about four minutes. At that point, the officer informed Mr. Monsivais he was going to pat him down for weapons “because of his behavior” and “for officer safety reasons.” Because a reasonable person would not feel free to simply walk away when confronted with  this assertion of authority, a seizure occurred.

The Fourth Amendment Violation

Officers would be permitted to briefly detain Mr. Monsivais for investigative purposes if they could point to “specific and articulable facts” that gave rise to a reasonable suspicion that Mr. Monsivais had committed, was committing, or was about to commit a crime.

The government identified three facts to support reasonable suspicion of Mr. Monsivais. During the four minute interaction prior to the seizure, (1) after the officers had stopped and turned on the car’s flashing lights Mr. Monsivais kept walking past and away from the squad car, (2) Mr. Monsivais was confusing as to where he had been and allegedly gave an inconsistent statement about where he was heading, and (3) he kept putting his hands in his pockets and exhibited a jittery demeanor. The Fifth Circuit found none of these facts suggested criminal activities wither inherently or contextually.

The government instead attempted to put an ominous gloss over almost entirely normal behavior. Being nervous around police is an entirely normal reaction. And, although most might welcome police following a vehicle malfunction, the Constitution does not mandate enthusiastically embracing law enforcement during car troubles. As to the veracity of Mr. Monsivais’s statements, the record was unclear. Mr. Monsivais was walking in a direction opposite to where the disabled vehicle was pointing, but he could have merely been looking for gasoline in that direction or understood the officer’s inquiry  as referring to his immediate rather than ultimate destination.

Even viewed in their totality, the Court could discern no objectively logical path from the three specified facts to criminal activities. What separates a reasonable inference of criminality from a hunch of criminality is articulating how criminal behavior is linked to objective facts. The officers had no such articulation, so the Court concluded the suspicion arose from an impermissible hunch rather a reasonable inference.

Dissenting View

Circuit Judge Edith Jones dissented from this decision, believing the officers had the requisite reasonable suspicion. The dissent principally centered around a differing interpretation of the facts. According to the dissent, “it is impossible to conceive that [law-abiding or sober people whose cars are stuck on the side of a highway, far out in the country, at dusk] would flaunt their libertarian instincts to avoid contact with helpful police enforcement. The facts cry out reasonable suspicion.” The dissent criticized the majority’s analysis as incomprehensible; asking what else the officers needed to see–“smudges of white powder on his clothes?” The dissent also believed the fact the intrusion was limited to the level necessary to ensure the officers’ safety  was relevant to the inquiry, but the majority failed to give adequate deference to law enforcement

The Sentencing Project publishes a report on the declining prospects for parole on life sentences

The Sentencing Project recently released Delaying a Second Chance: The Declining Prospects for Parole on Life Sentences. The Report’s findings came from a national survey to which 31 states and the federal government responded to with available date since 1980. (Full report available here). Some of the highlights are below:

  1. Prisoners serving a life sentence have seen marked increase over the last two decades and represent a significant portion of the incarcerated population.

    As of 2012 one in nine people in state and federal prisoners were there for life sentences (approx. 160,000). The number of people serving life sentences has quadrupled since 1984.

  2. More frequent impositions of life sentences and reluctance to grant parole to those serving life sentences has driven the growth in this population.

  3. Sixty-four percent of lifers were convicted of homicide. But, there were more than 10,000 people serving life sentences for nonviolent offenses in 2012.

  4. An examination of lifers released in California found a recidivism rate of less than 1%

    Among a group of 860 individuals convicted of murder who were paroled between 1995 and 2011, less than 1% were sentenced to jail or prison for new felonies, and none recidivated for life-term crimes.

The Report concluded with the following recommendations:

  1. Expedite parole eligibility: Reduce the minimum number of years that lifers must serve before their first parole hearing and shorten wait times for subsequent hearings.
  2. Depoliticize and professionalize parole boards: Distance governors from paroling authorities to enable parole decisions to be based on meaningful assessments of public safety risk.
  3. Establish a presumption of release: Parole boards should assume that parole candidates are potentially suited for release at the initial, and especially subsequent, parole hearings unless an individual is deemed to pose an unreasonable public safety risk.
  4. Improve the integrity of parole hearings: Expand the procedural rights of parole applicants, enable parole applicants to review the evidence used to evaluate their eligibility for parole, and allow the public to review decision-making criteria and outcomes.