Monday, August 31, 2015

Congress Can Criminalize International Illicit Non-Commercial Sex

US v. Bollinger: Bollinger was a minister who moved to Haiti in 2004, along with his wife, to run a ministry. He enjoyed the services of local prostitutes and, eventually, began molesting young girls. In 2009 (while in bed with another woman), Bollinger got a call from his wife and confessed his infidelity. He returned to Virginia a week later to start counseling. As part of that counseling he admitted his sexual acts with young girls. The psychologist treating the couple contacted authorities. Bollinger was charged with engaging in illicit sexual acts with minor after traveling in foreign commerce. Bollinger entered a conditional guilty plea when the district court denied his motion to dismiss the indictment.

On appeal, the Fourth Circuit affirmed Bollinger's conviction, rejecting his argument that the statute exceeded the scope of Congressional authority. Recognizing that Bollinger's conduct was "non-commercial illicit conduct," the court examined whether it was encompassed by the Foreign Commerce Clause. It declined Bollinger's invitation to "wholly transport" the Supreme Court's jurisprudence involving the Interstate Commerce Clause, concluding (among other things) that the federalism concerns that were implicated in interstate regulation did not apply to foreign regulation. Thus, "the pivotal question in this case is how directly an activity must affect foreign commerce for it to be a proper subject of congressional regulation." The Foreign Commerce Clause, the court concluded, only required a "demonstrable effect" on such commerce, rather than a "substantial effect," as with interstate commerce. It was then "imminently rational to believe that prohibiting non-commercial sexual abuse of children by Americans abroad has  a demonstrable effect on sex tourism and the commercial sex industry." Thus, it fell within Congress's power.

The court also rejected Bollinger's challenge to his sentence of 25 years in prison, a variance downward from an advisory Guideline range (and statutory max) of 60 years.

Sex Trafficking Not a Crime of Violence

US v. Fuertes: Fuertes and his codefendant, Ventura, were involved in an interstate prostitution scheme that operated in Maryland. After a jury trial they were both convicted of conspiracy, with Ventura additionally convicted of sex trafficking by force, fraud or coercion under 18 USC 1591(a), as well as possessing a firearm in connection with a crime of violence - the 1591 offense. Fuertes received a sentence of 215 months in prison, Ventura one of 420 months in prison.

On appeal the Fourth Circuit affirmed most of the convictions and Fuertes's sentence, on issues including evidentiary claims and sufficiency of the evidence. However, the court vacated Ventura's conviction on the firearm possession count (and, thus, his sentence). It concluded that 1591 was not a "crime of violence" predicate for the offense. It did so under a plain error standard because while Ventura had moved for a judgment of acquittal on that count he had not presented the legal argument (versus the factual one) that he presented to the Fourth Circuit. Nonetheless, the error was plain, affected his substantial rights, and was of the type the court decided to notice. Section 1591, the court held, was not divisible because "it contains a single indivisible set of elements," although it had many "alternative means of commission." It rejected the Government's argument that the offense was categorically violent even if committed via fraud because "there is still a substantial risk of physical injury from the prostitute's customers," holding that the relevant statutory language required that force be used during the commission of the offense: "the relevant inquiry is not whether there is risk of any person using force in any way tangentially related to an on-going offense, but rather whether there is a substantial risk of the defendant doing so."

Mandatory Life for Piracy Not Cruel & Unusual

US v. Said: Said was one of several defendants in this consolidated appeal that were convicted of piracy. The convictions arose from not one but two unsuccessful attempts to capture ships that, it turned out, were military craft (a Royal Navy frigate and a US Navy dock landing ship). The second attempt left the pirates' boat destroyed and the pirates in custody of the US Navy. They were brought to the Eastern District of Virginia and charged with (among other things) piracy on the high seas under 18 USC 1651 which carries a mandatory life sentence. After unsuccessfully trying to dismiss that charge (for reasons explained here), Said and all but one of the other pirates were convicted at trial. However, the district court concluded that a life sentence in this case violated the Eighth Amendment's prohibition on cruel and unusual punishment and imposed various terms of months on the defendants. The Government appealed.

On appeal the Fourth Circuit vacated the sentences and remanded the case for the imposition of life sentences. The court concluded that Said couldn't make it past the first prong of the Supreme Court's test for non-capital Eighth Amendment sentences, that "the gravity of the offense and the severity of the sentence produces an inference of gross disproportionality." It noted that the Supreme Court had only found one non-capital sentence to be grossly disproportionate (life as a recidivist after passing a bad check) and that the Fourth Circuit hasn't identified any such sentence since. The court rejected the argument that the defendants' conduct was merely "attempted robbery on the high seas" that didn't result in any serious injury or damage, noting that  it was "at least as severe as the cocaine possession" that the Supreme Court held could trigger a life sentence. The statutory life sentence "reflects a rational legislative judgment, entitled to deference" about the danger posed by piracy.

Judge Davis concurred, suggesting that "not all piracy offense are equal in severity" and that Congress might revisit the issue.

Warrant Requires to Get Historical Cell Cite Info

US v. Graham: Graham and his codefendant, Jordan, were involved in a string of commercial robberies that took place in and around Baltimore. They were arrested after the last theft when they were stopped in the truck that served as a getaway vehicle. Among the evidence retrieved from the truck was a pair of cell phones, one subscribed to Jordan and the other to Graham's wife. Investigators obtained court orders, pursuant to the Stored Communications Act, to obtain cell site location information ("CSLI") from the phones. CSLI (I'm grossly simplifying here) can help determine the location of a phone over time as it interacts with various cell towers to send and receive information. Investigators were able to use the CSLI to place the phones (and, by association) Graham and Jordan near robbery sites. Graham and Jordan moved to suppress that data, arguing that investigators were required to get a warrant before obtaining it. The district court denied the motion and Graham and Jordan were convicted at trial of various counts related to the robberies.

On appeal the Fourth Circuit affirmed the convictions and the district court's order denying suppression of the CSLI. However, the court was deeply divided on the rational for doing so. The majority concluded that investigators should have gotten a warrant obtain the CSLI, but concluded that suppression wasn't appropriate because they did comply with existing law when getting a court order under the Stored Communications Act. Specifically, the investigators' inspect of "a cell phone user's historical CSLI for an extended period of time" was a "search" for Fourth Amendment purposes. It wasn't persuaded that Graham and Jordan waived any expectation of privacy based on the fine print of their contract that, the court realized, nobody actually reads. As to the data itself, it looked to the concurring opinions in the Supreme Court's recent Jones and the concerns about being able to harvest vast amounts of data. It also distinguished cases like Jones itself (and the prior beeper cases) that tracked vehicles by pointing out that a phone location is often the location of a person and can include traditionally protected places like the home.

The main fissure between the majority and the dissenting Judge Motz was over the third-party doctrine. The majority concluded that it didn't apply here because "cell phone users do not voluntarily convey their CSLI to their service providers." That is because the data accumulates even when the person isn't using the phone, such as when a text message is received or an incoming phone call isn't answered. Judge Motz, by comparison, argued that the majority's conclusion "flies in the face of the Supreme Court's well-established third-party doctrine" and that the CSLI was the same as the pen register information covered by the Supreme Court's decision in Smith. The majority recognizes that its holding is at odds with decisions of the Fifth and Eleventh Circuits.

However, the end result of both the majority and dissenting opinions are the same - no suppression.

In the midst of all this Judge Thacker wrote a brief concurrence expressing her "concern about the erosion of privacy in this era of rapid technological development" and concludes by saying "this decision continues a time-honored American tradition -- obtaining a warrant is the rule, not the exception."

UPDATE: The Government has filed a petition for rehearing in this case, which the Fourth Circuit has granted. As such, this opinion has been withdrawn.