Articles Posted in Federal Criminal Law

ar15-rifle-2-1453209-300x81This section went all the way to the United States Supreme Court in Deal v. United States 113 S.Ct. 1993 (1993), in which Mr. Deal got a bad deal at court of 105 years in prison for possessing a firearm during five bank robberies.   The Court explored whether “second or subsequent offense” meant that he would have to be convicted by judgment of the first bank robbery on a date before the second or subsequent convictions.   The highest Court found that these offenses could be stacked, even if all convictions happened on one judgment and from one trial.   The 105 year sentence was affirmed.

The “stacking” provision comes next in the statute, where it says:

“(D) Notwithstanding any other provision of law— (i) a court shall not place on probation any person convicted of a violation of this subsection; and (ii) no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.

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Thus, if you bring a firearm to a crime of violence or a drug trafficking crime, you will have a mandatory minimum of five years in prison.   If you brandish it, which means show it or make it visible to other people, it goes up to a mandatory minimum of seven years.   If the firearm is discharged one time, whether in the air or in the direction of a person, the minimum goes up to ten years.  If you bring a semi-automatic rifle or a shortened shotgun or rifle, the minimum is ten years.   Machine guns and guns with silencers are 30 year minimums.  That is a big jump.  However, things can get much, much worse on second and subsequent offenses.

The statute goes on to say:

“(C) In the case of a second or subsequent conviction under this subsection, the person shall—

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It is a very bad idea to possess a firearm while robbing a bank, committing any federal crime of violence, or trafficking drugs.   Congress has imposed stiff, sometimes unconsciounable penalties for doing so.   These include mandatory minimums that, with multiple offenses, could get your mandatory minimum sentence into centuries of years in the penitentiary.

18 U.S.C. section 924(c) (1) (A) states that

“(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—

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We cannot shut our eyes to the fact that, had the petitioner attempted to violate Proclamation No. 4 and leave the military area in which he lived, he would have been arrested and tried and convicted for violation of Proclamation No. 4. The two conflicting orders, one which commanded him to stay and the other which commanded him to go, were nothing but a cleverly devised trap to accomplish the real purpose of the military authority, which was to lock him up in a concentration camp. The only course by which the petitioner could avoid arrest and prosecution was to go to that camp according to instructions to be given him when he reported at a Civil Control Center. We know that is the fact. Why should we set up a figmentary and artificial situation, instead of addressing ourselves to the actualities of the case?

These stark realities are met by the suggestion that it is lawful to compel an American citizen to submit to illegal imprisonment on the assumption that he might, after going to the Assembly Center, apply for his discharge by suing out a writ of habeas corpus, as was done in the Endo case, supra. The answer, of course, is that, where he was subject to two conflicting laws, he was not bound, in order to escape violation of one or the other, to surrender his liberty for any period. Nor will it do to say that the detention was a necessary part of the process of evacuation, and so we are here concerned only with the validity of the latter.

Again, it is a new doctrine of constitutional law that one indicted for disobedience to an unconstitutional statute may not defend on the ground of the invalidity of the statute, but must obey it though he knows it is no law, and, after he has suffered the disgrace of conviction and lost his liberty by sentence, then, and not before, seek, from within prison walls, to test the validity of the law.

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In the dilemma that he dare not remain in his home, or voluntarily leave the area, without incurring criminal penalties, and that the only way he could avoid punishment was to go to an Assembly Center and submit himself to military imprisonment, the petitioner did nothing.

June 12, 1942, an Information was filed in the District Court for Northern California charging a violation of the Act of March 21, 1942, in that petitioner had knowingly remained within the area covered by Exclusion Order No. 34. A demurrer to the information having been overruled, the petitioner was tried under a plea of not guilty, and convicted. Sentence was suspended, and he was placed on probation for five years. We know, however, in the light of the foregoing recitation, that he was at once taken into military custody and lodged in an Assembly Center. We further know that, on March 18, 1942, the President had promulgated Executive Order No. 9102, [n7] establishing the War Relocation Authority under which so-called Relocation Centers, a euphemism for concentration camps, were established pursuant to cooperation between the military authorities of the Western Defense Command and the Relocation Authority, and that the petitioner has been confined either in an Assembly Center within the zone in which he had lived or has been removed to a Relocation Center where, as the facts disclosed in Ex parte Endo (post, p. 283) demonstrate, he was illegally held in custody.

The Government has argued this case as if the only order outstanding at the time the petitioner was arrested and informed against was Exclusion Order No. 34, ordering him to leave the area in which he resided, which was the basis of the information against him. That argument has evidently been effective. The opinion refers to the Hirabayashi case, supra, to show that this court has sustained the validity of a curfew order in an emergency. The argument, then, is that exclusion from a given area of danger, while somewhat more sweeping than a curfew regulation, is of the same nature — a temporary expedient made necessary by a sudden emergency. This, I think, is a substitution of an hypothetical case for the case actually before the court. I might agree with the court’s disposition of the hypothetical case. [n8] The liberty of every American citizen freely to come and to go must frequently, in the face of sudden danger, be temporarily limited or suspended. The civil authorities must often resort to the expedient of excluding citizens temporarily from a locality. The drawing of fire lines in the case of a conflagration, the removal of persons from the area where a pestilence has broken out, are familiar examples. If the exclusion worked by Exclusion Order No. 34 were of that nature, the Hirabayashi case would be authority for sustaining it. [p232] But the facts above recited, and those set forth in Ex parte Endo, supra, show that the exclusion was but a part of an over-all plan for forceable detention. This case cannot, therefore, be decided on any such narrow ground as the possible validity of a Temporary Exclusion Order under which the residents of an area are given an opportunity to leave and go elsewhere in their native land outside the boundaries of a military area. To make the case turn on any such assumption is to shut our eyes to reality.

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On March 2, 1942, the petitioner, therefore, had notice that, by Executive Order, the President, to prevent espionage and sabotage, had authorized the Military to exclude him from certain areas and to prevent his entering or leaving certain areas without permission. He was on notice that his home city had been included, by Military Order, in Area No. 1, and he was on notice further that, at sometime in the future, the Military Commander would make an order for the exclusion of certain persons, not described or classified, from various zones including that, in which he lived.

March 21, 1942, Congress enacted [n3] that anyone who knowingly

shall enter, remain in, leave, or commit any act in any military area or military zone prescribed . . . by any military commander . . . contrary to the restrictions applicable to any such area or zone or contrary to the order of . . . any such military commander

subpoena-232x300All of this considered, as a practical matter an attorney should get a release from the client and obtain certified admissible paper records of all such witnesses in the ongoing fight.  Agencies can be very courteous in getting you these documents as they know it helps them stay out of Court and live testimony.  Sometimes there are even strategic reasons that the records are better than a live witness.  If a Court rules that a witness is unavailable for a state subpoena, the evidence can come in as government records, business records, and other possible hearsay exceptions.

However, Touhy and its progeny cut against the fundamental right of criminal defendants to compel the attendance of all witnesses necessary for their defense.   We as criminal practitioners should continue to litigate and attack the Touhy doctrine and get courts to narrowly define it according to its original holding.

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As noted by the United States District Court Southern District of Mississippi:

Touhy’s rationale was undermined by a decision rendered by the Supreme Court two years later, in which it considered a claim of governmental privilege and noted, “Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.” United States v. Reynolds, 345 U.S. 1, 9-10 (1953). Touhy’s holding was further weakened by a 1958 amendment to the Housekeeping Statute, which added the language, “This section does not authorize withholding information from the public or limiting the availability of records to the public.”  Blanks v. Lockheed Martin Corp., 2006 WL 1892512 (S. D. Miss. 2006).

A defendant generally has a Sixth Amendment right to compel and present a material witness’s live testimony.  As the Supreme Court stated in Washington v. Texas:

Department-of-Veterans-Affairs-logo-300x150     In Forgione v. HCA, Inc. 954 F.Supp.2d 1349 (N. D. Florida 2013), the Government made an unfounded argument that state employees and agents could also be Federal employees for purposes of 28 U.S.C. section 1442.  The Court for purposes of the question at bar stated:

Right to control is the classic factor in determining who is an employee when that question is in doubt. See, e.g., Langfitt v. Fed. Marine Terminals, Inc., 647 F.3d 1116, 1121 (11th Cir.2011) (“The essence of the common law’s test for whether an agent is an employee or an independent contractor is the control of details; that is, whether the principal has the right to control the manner and means by which the agent accomplishes the work.”); see also, e.g., N.L.R.B. v. Steinberg, 182 F.2d 850, 857 (5th Cir.1950)

The statute at play is the housekeeping statute at 5 U.S.C. section 301: