January 15, 2011
Wagoner on Honest-Services Fraud and Skilling
Nicholas J. Wagoner has posted Honest-Services Fraud: The Supreme Court Defuses the Government's Weapon of Mass Discretion in Skilling v. United States (South Texas Law Review, Vol. 51, No. 4, 2010) on SSRN. Here is the abstract:
For over two decades federal prosecutors wielded a weapon of mass discretion in their fight against corruption: the honest-services fraud statute. Although prosecutors welcomed the statute's ambiguous text, judges, defendants, and scholars struggled for more than two decades to answer a number of difficult constitutional questions arising from the honest-services fraud theory. In 2010, the Supreme Court used Skilling v. United States - a case that chronicles the events that led to the epic collapse of former energy giant Enron - to defuse the Government’s “weapon of mass discretion” by limiting honest-services fraud to cover only schemes involving bribery or kickbacks, thereby placing more subtle forms of dishonesty, such as undisclosed self-dealing, outside the statute's reach.
This Comment discusses the case’s impact on the fallen Enron CEO’s fight for freedom, in addition to its impact on two other petitioners who successfully challenged the honest-services fraud statute in 2010. I also examine the rights of the defendants whose convictions or plea agreements were premised on an application of the statute now declared unconstitutional, as well as analyze the decision’s impact on pending and future cases of honest-services fraud.
Finally, I explain why Congress will likely supersede Skilling by amending § 1346 to expressly criminalize schemes involving an individual’s failure to disclose their self-dealing; analyze the proposed “Honest Services Restoration Act” (HSRA), which was drafted to accomplish this goal; and conclude that, although not perfect, the proposed language contained in the HSRA adequately addresses the major constitutional concerns surrounding the use of honest-services fraud to prosecute undisclosed self-dealing.
January 14, 2011
As close as we come to a criminal law/procedure argument next week
Issue summary from ScotusBlog, which also links to papers:
Wednesday, Jan. 19
- FCC v. AT&T: The Freedom of Information Act has an exception that permits the government to withhold information gathered during law enforcement investigations if disclosing the information would constitute an invasion of “personal privacy.” Does the exemption apply to protect the privacy of a corporation?
Slobogin on Technology and the Fourth Amendment
Christopher Slobogin (Vanderbilt Law School) has posted Is the Fourth Amendment Relevant in a Technological Age? on SSRN. Here is the abstract:
This work will be a chapter in a forthcoming book in The Future of the Constitution series, edited by Jeffrey Rosen and Benjamin Wittes and published by the Brookings Institute. Over the past 200 years, the Fourth Amendment’s guarantees have been construed largely in the context of what might be called "physical searches" - entry into a house or car; a stop and frisk of a person on the street; or rifling through a person’s private papers. But today, with the introduction of devices that can see through walls and clothes, monitor public thoroughfares twenty-four hours a day, and access millions of records in seconds, police are relying much more heavily on what might be called "virtual searches," investigative techniques that do not require physical access to premises, people, papers or effects and that can often be carried out covertly from far away. The Supreme Court’s current Fourth Amendment jurisprudence - specifically, its "knowing exposure," "general public use," "contraband-specific," "assumption of risk" and "special needs" doctrines - has both failed to anticipate this development and continued to ignore it. This article describes this jurisprudence and how it can foster law enforcement abuse, mission creep, mistaken seizures and physical searches, and an oppressive atmosphere even for the innocent. It then outlines a more technologically-sensitive Fourth Amendment framework.
January 13, 2011
Smith, Cutler & Findley on the Influence of Screening by Innocence Projects
Andrew M. Smith , Brian L. Cutler and Keith A. Findley (pictured) (University of Ontario Institute of Technology (UOIT) , University of Ontario Institute of Technology (UOIT) and University of Wisconsin Law School) have posted An Investigation of Top-Down vs. Bottom-Up Processing in Post-Appellate Review of a Criminal Case on SSRN. Here is the abstract:
Convicted persons who claim to be factually innocent frequently seek assistance from advocacy organizations that help investigate and establish actual innocence. This experiment examined the extent to which the knowledge that a case has passed pre-screening by an innocence project influences case-reviewer judgment through top-down case processing. One hundred-fifty-nine participants role-played case reviewers, evaluated discovery for a criminal case, and evaluated the case. Prior to evaluation, half of the participants were instructed that the case was not previously adjudicated, whereas the other half was told that the case was referred by an innocence advocacy organization. Instructions significantly influenced participants evaluations, suggesting the influence of top-down processing of case discovery.
Venue and State/Federal Prosecution Issues in Loughner Case
University of San Diego Law School alum Larry Burns has been selected to handle the case. An article in the Wall Street Journal addresses the venue and multiple prosecution issues.
Dubber on the Legality Principle in American and German Criminal Law
Markus D. Dubber (University of Toronto - Faculty of Law) has posted The Legality Principle in American and German Criminal Law: An Essay in Comparative Legal History on SSRN. Here is the abstract:
After briefly recounting the (non-) history of the principle of legality (nullum crimen sine lege) in American criminal law, this paper explores the potential of comparative legal history as a tool of critical analysis of law, by outlining a cross-temporal and -systemic analysis of the legality principle, using German criminal law as a point of comparison.
January 12, 2011
Argument transcript in exigent circumstances case
The case is Kentucky v. King.
Argument transcript in Armed Career Criminal Act case
The case is Sykes v. United States.
January 11, 2011
Logan on Contingent Constitutionalism
Wayne Logan (Florida State) has published Contingent Constitutionalism: State and Local Criminal Laws and the Applicability of Federal Constitutional Rights at The Legal Workshop. An excerpt:
Although federal constitutional law nominally serves as the nation’s connecting sinew, its application, as this Article makes clear, hinges on state and local legal norms, which are highly variable and create a functionally irregular rights regime. Police authority to search and seize individuals, regulated by the Fourth Amendment, for instance, hinges on state and local decisions to criminalize particular acts or omissions, which can be variously defined. Consequently, one’s Fourth Amendment freedom from search and seizure in California differs from that enjoyed in Florida, Texas, Maine, and the Dakotas. It also differs within states themselves, as a result of the significant criminal lawmaking authority of local governments.
Felony Murder and the Unsecured Load
Cole Wilkins sneaks onto a deserted construction site late at night, piles some construction materials (light fixtures, applicances, a sink, etc.) into the back of his truck, and leaves. Four hours later, 60 miles from the scene of the deserted burglary, Wilkins is driving normally when one of the items accidentally falls off his truck. A tractor-trailer swerves to avoid it, jackknifes, and turns over, trapping and killing a man in a vehicle next to the big rig.
So Wilkins is tried and convicted. For first degree murder. Forwhich he's sentenced to 25 years to life in prison.
. . .
If that's the law -- as indeed it is -- then the law is an ass.
January 10, 2011
This week's criminal law/procedure oral arguments
Issue summaries from ScotusBlog:
Wednesday, Jan. 12
- Sykes v. US: Whether fleeing the police in a car, after being ordered to stop, constitutes a “violent felony” within the meaning of the Armed Career Criminal Act, which imposes heightened sentences for such violent felonies.
- Kentucky v. King: Although the police usually need a warrant to enter someone’s home, there is an exception for emergency situations. The question is whether that exception can apply when the emergency is created by the lawful actions of the police.
Dissent from cert denial in commerce clause challenge to federal prohibition on felon's possession of body armor
Justice Thomas's dissent in Alderman v. United States is here. Justice Scalia concurs in all but footnote 2.
Criminal law/procedure cert grants
from Friday. Summaries from ScotusBlog, which also links to cert papers and opinions below:
- Lafler v. Cooper: Whether a state habeas petitioner is entitled to relief when his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial.
- Missouri v. Frye: Can a defendant who validly pleads guilty assert a claim of ineffective assistance of counsel by alleging that, but for counsel's error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms? What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?
- McNeill v. United States: Whether a conviction under state law can be treated as a serious drug offense for purposes of a longer sentence under the federal Armed Career Criminal Act, if the state law violated did not at the time of federal sentencing set a maximum prison term of at least ten years, but had done so at the time the crime was committed.
Robinson on a Comparative Summary of American Criminal Law
Paul H. Robinson (University of Pennsylvania Law School) has posted [A Brief Comparative Summary of the Criminal Law of The] United States (THE HANDBOOK OF COMPARATIVE CRIMINAL LAW, Kevin Jon Heller & Markus D. Dubber, eds., Stanford University Press, 2011) on SSRN. Here is the abstract:
This chapter provides a very brief summary of the central features of American criminal law. Section II describes its source and current form, which is almost exclusively statutory, embodied in the criminal codes of each of the fifty American states and (to a lesser extent) the federal criminal code. Section III sketches the typical process by which a case moves through an American criminal justice system, from the report of a crime through trial and appellate review. Section IV summarizes the most basic objective and culpability requirements necessary to establish liability for an offense and the doctrines that sometimes impute those elements when they do not in fact exist. Section V describes the general defenses that may bar liability, even if the offense elements are satisfied or imputed. Finally, section VI describes the general organization of a typical American criminal code's definition of offenses and gives highlights concerning a few of the most common offenses.
January 9, 2011
Top-Ten Recent SSRN Downloads
|1||367||The Facade of FCPA Enforcement
Butler University College of Business,
Date posted to database: November 9, 2010
|2||316||Good Faith, New Law, and the Scope of the Exclusionary Rule
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: September 11, 2010
|3||302||Vagueness and the Guidance of Action
New York University (NYU) - School of Law,
Date posted to database: October 31, 2010
|4||277||Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts
Gray Proctor, Nancy J. King,
Fourth Circuit Court of Appeals, Vanderbilt University - Law School,
Date posted to database: November 11, 2010
|5||221||The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric?
University of South Carolina - School of Law,
Date posted to database: October 11, 2010
|6||200||Theorizing Mental Health Courts
E. Lea Johnston,
University of Florida - Fredric G. Levin College of Law,
Date posted to database: November 21, 2010
|7||198||Talking About Prosecutors
Alafair S. Burke,
Hofstra University - School of Law,
Date posted to database: September 24, 2010
|8||196||Is the Rome Statute Binding on Individuals? (And Why We Should Care)
University of Nottingham School of Law,
Date posted to database: October 12, 2010
|9||170||And All the Pieces Matter: Thoughts on The Wire and the Criminal Justice System
Susan A. Bandes,
DePaul University - College of Law,
Date posted to database: October 5, 2010
|10||159||Arming States’ Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy
Barak Y. Orbach, Kathleen S. Callahan, Lisa M. Lindemenn,
University of Arizona, University of Arizona - James E. Rogers College of Law, University of Arizona - James E. Rogers College of Law,
Date posted to database: October 23, 2010