Direct Appeal Issues in Federal Court – Plain Error vs. Abuse of Discretion

There are lots of issues that can be raised on direct appeal from an original sentencing hearing or trial. Too many than can be established in one blog post. Lawyers who practice in federal courts spend years litigating cases and studying law at the district level and sometimes at the appeal level. This post gets pretty technical, so read on at your own pace (risk).

Direct appeals from criminal cases can bring up evidence that should have been suppressed,1 or other actions that should have been taken legally by the district court but weren’t. For example, take the case of United States v. Fricosu (read up on the case here, here, and here). In this case, the government tried to force the defendant to give up her passwords so they could prosecute her for what was (hopefully) on her encrypted hard drives. The appeals court had to determine if this violated Fricosu’s 5th Amendment protections against self incrimination.

Aside from the many issues that are unique to a case and are argued at the lowest level of courts, there are two main places where Courts of Appeal will rule on sentences and convictions from district-level judges. These handle issues of plain error and abuse of discretion.

Plain Error

Each circuit has their own set of cases that define plain error reviews, but they all tend to revolve around a very easy, common sense definition of “plain error”. If the judge makes an obvious error, then the appeals court will send it back for correction.

A good example of this is if the judge mistakenly sentences a defendant with 4 extra points added to the offense level being sentenced. Depending on where they land on the federal sentencing table, 4 points could mean the difference of 2+ years on a sentence. Say the 4-points was for a gun used in the commission of a crime, when there were no reports or evidence of guns at all. It just got added because somebody made a clerical error.

Once that sentence was pronounced by the district judge, the only place to correct the plainly erroneous sentence would be the appeals court. If a sentence or decision is made in plain error, the matter is, if explained well, a simple correction that is dictated by the appeals court.

Abuse of Discretion

Judges at the district level have pretty wide latitude to make certain decisions. Anything from re-hearing requests, motions for dismissal of indictment are posed to district judges every day and they have to make a decision on whether or not the request has legal merit. Judges, for lack of a better phrase, just use their best judgment. When this decisions go out of bounds in a bold or subtle way, the appeals courts have the job of correcting this.

The definition of these powers are set by the Circuit itself. For the 9th Circuit, they define their abuse of discretion standard this way:

The standard, as it is currently described, grants a court of appeals power to reverse a district court’s determination of facts tried before it, and the application of those facts to law, if the court of appeals forms a “definite and firm conviction that a mistake has been committed.” At the same time, the standard denies a court of appeals the power to reverse such a determination if the district court’s finding is “permissible.”

Because it has previously been left to us to decide, without further objective guidance, whether we have a “definite and firm conviction that mistake has been committed,” or whether a district court’s finding is “permissible,” there has been no effective limit on our power to substitute our judgment for that of the district court. United States v. Hinkson

If this sounds confusing, it usually is. However, the basis of the standard is simple. If the law allows for certain things at the judge’s discretion, anything outside of those certain things is abuse of discretion. If a district judge abuses his/her discretion on a simple matter, it can call into question the entire conviction. These arguments can be very nuanced, but can have very large impacts on the outcome of appeals.

That’s it for now, as a deeper discussion of abuse of discretion vs. plain error would get very VERY technical and boring. As if it weren’t already.

  1. Such as evidence gathered from an unlawful warrant, or testimony from an unreliable source []

June Roundup

The end of May was not a good one for anybody sitting at the defense table in Federal (and even State) courtrooms. This post is a quick look at the decisions that make defendant’s lives harder.

Maryland v. King

This case is all about 4th Amendment rights, and what constitutes too much invasion of personal liberties (and one’s own body) without a judge’s authorization. In short, can police take a DNA sample of citizens suspected of felony crimes?

In recent years, law enforcement and prison bureaus have taken DNA samples from inmates who are convicted of felonies and certain misdemeanors. These samples get loaded into local and national databases to be compared to DNA samples from unsolved crimes.1

In Maryland, a law was passed which allowed law enforcement to take DNA samples of citizens who were arrested of crimes, but not yet convicted. All without a judicial warrant for this “search” of the body. An old case was solved using DNA, and a conviction for a rape in 2003 was achieved through this process. Defendant King appealed, saying that DNA collection from people not yet convicted of any crime violates 4th Amendment Protections against unreasonable search and seizure.

The United States Supreme Court, in this recent and sharply divided decision, said that these DNA collections are not protected by the 4th Amendment and do not need a judges signature for those arrested for certain crimes.

Some Good News

Managers and leaders are taught in training courses that, in order to communicate dismay, such news must be presented in between positive notes. While there aren’t enough good cases to bookend the bad, there was one decision from the 6th Circuit that bodes exceptionally well in the Fair Sentencing Act (FSA) arena.

The FSA 2010 brought down the sentencing disparity in federal courts between powder and crack cocaine. In the pre-FSA days, there was a disparity between sentences of 100:1. This meant that 2.2 pounds of distributed powder cocaine carried the same sentence as only 10 grams of crack cocaine. FSA 2010 brought that ration down to a mere 18:1. These drugs are not treated equally yet, and it still punishes poor urban defendants disproportionately, but its a start.

Later on, the US Sentencing Commission decided unanimously to apply these reductions retroactively. This retroactive ruling, however, did nothing for those sentenced to mandatory minimum sentences before FSA 2010 became active. In US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013), the 6th Circuit decided in a split decision that it would be the UN-Fair Sentencing Act of 2010 if it did not apply retroactively to defendants who were sentenced before the enactment of the law.

This decision is sure to be reviewed by the entire panel of 6th Circuit judges en banc and may well not make it through that review, but its good news for incarcerated crack cocaine defendants in the 6th Circuit until then.

Brady Rules of Evidence

Prosecutors want convictions. Defense council wants the opposite. However, in the American justice system, the prosecutor holds almost all of the cards. The landmark US Supreme Court decision in Brady v. Maryland, 373 U.S. 83 (1963) the interest of justice was put before simple conviction numbers.

This opinion editorial from the NY Time on May 18th begins by describing Brady this way:

Fifty years ago, in the landmark case Brady v. Maryland, the Supreme Court laid down a fundamental principle about the duty of prosecutors — to seek justice in fair trials, not merely to win convictions by any means. The court said that due process required prosecutors to disclose to criminal defendants any exculpatory evidence they asked for that was likely to affect a conviction or sentence.
It might seem obvious that prosecutors with any sense of fairness would inform a defendant’s lawyer of evidence that could be favorable to the defendant’s case. But in fact, this principle, known as the Brady rule, has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases.

Read more about this complete lack of punishment for prosecutors who commit misconduct from their office in this lengthy Yale Law Journal post. Noting how the Brady decision above has been so thoroughly gutted since 1963, the Times article points out the Thompson case.2

The 2011 case of John Thompson is particularly instructive — as an example of atrocious prosecutorial misconduct and of the Supreme Court’s refusal to hold the prosecutor accountable. Mr. Thompson spent 14 years on death row for a murder he did not commit. He was exonerated when an investigator found that lawyers in the New Orleans district attorney’s office had kept secret more than a dozen pieces of evidence that cast doubt on Mr. Thompson’s guilt, even destroying some. Yet the Supreme Court’s conservative majority overturned a $14 million jury award to Mr. Thompson, ruling that the prosecutor’s office had not shown a pattern of “deliberate indifference” to constitutional rights. Outrageous breaches of due process rights in such cases show that the Brady rule — which seems essentially voluntary in some places — is simply insufficient to ensure justice.

To summarize, prosecutors must disclose all evidence which would be beneficial to the defendant, in order to secure fairness in the judicial system. Prosecutors are not supposed to withhold or suppress evidence in order to secure convictions simply for the sake of convictions. However, prosecutors are not required to exercise this mandate during 95% of federal cases because that many cases end up with plea deals. Further, even if a prosecutor plays unfairly, there are no consequences of note.

Many clients believe that the cards are stacked against them. If this isn’t objective evidence enough that they’re right, what is?
And last but not least…

Fricosu: A final Update

This is a story that we’ve followed through half-dozen-or-so posts (see here, here, here, and here to get started). The anti-climatic ending to this very important 5th Amendment case was reported in this related article over at Wired.com yesterday.

What could have been a huge case in the 5th Amendment fight against a judiciary that doesn’t understand technology fizzled when a co-defendant went all “5K” and gave authorities the password that Fricosu was supposed to supply.

  1. crimes of murder, rape and the like… []
  2. Connick v. Thompson, 09-571 (SCOTUS 2011) []

UPDATE – Fricosu and the 5th Amendment

The Issue

For the last year or so, there has been a debate raging that seems to defy common sense. Namely, the debate concerns the 5th Amendment’s protection against self-incrimination. We’ve all heard congressmen, mob bosses, and steroid-riddled professional athletes use these protections to the point where, “Pleading the Fifth,” is part of the American lexicon.

See one of my favorite examples below:

The Debate – Fricosu and the 5th Amendment

The case in question( discussed here, here, and here), involved a mortgage fraud case out of Colorado where incriminating files were contained in a laptop with encryption so good the investigators and prosecution had no chance of recovering them without violating the defendant’s right to a speedy trial.

Common sense, at least to this blogger, would say that forcing a defendant to decrypt his or her own hard drive for the prosecution violates 5th Amendment protections and is tantamount to doing the prosecutions job for them. Initially, the 10th Circuit begged off an appeal of the lower court order. This was, in theory, because they wanted to hear the case fully on appeal instead of ruling just on this specific order.

Common sense, however, gets lost in the details. The order by Judge Blackburn states that, although providing her password to the prosecution in order to enable them to decrypt her hard drive will violate her 5th Amendment protections, being forced to use her password to decrypt the hard drive and then turn the hard drive itself over to the prosecution is perfectly legal. This is based on a preponderance of the evidence standard, reached because the government has enough evidence to believe that the hard drive has incriminating files1

Well, the defense will do just that. The federal justice machine moves slowly, at times, and Miss Fricosu’s sentencing hearing (after a plea deal was reached) is set for August 8, 2013.2 Most plea agreements, including this one, now contain a waiver of appeal, a tactic brought to you originally by former federal prosecutor Bill Otis. This means that a defendant waives their ability to appeal. Fortunately, Miss Fricosu’s plea agreement adds an exception to the appeal waiver to bring up this issue at the 10th Circuit again after her case is finalized at the district level.

Ramifications and a Circuit Split

The idea that decrypting files for the government does not violate 5th Amendment privileges got its start with sex offense cases. It is easy to bend or even break constitutional protections against very distasteful defendants such as those charge with child pornography possession. The problem, however, becomes the extension of these constitutional ‘bends’ to the rest of the population.

This recent article from the folks over at ARS Techinca entitled “Fifth Amendment shields child porn suspect from decrypting hard drives” delves into the ramifications of these rulings moving forward, and how not all district judges agree with this ‘bend’. The article gets started this way:

A federal judge refused to compel a Wisconsin suspect to decrypt the contents of several hard drives because doing so would violate the man’s Fifth Amendment right against self-incrimination. Judge William E. Callahan’s Friday ruling ultimately labeled the issue a “close call.”

Courts have wrestled with how to apply the Fifth Amendment to encrypted hard drives for several years. According to past rulings, forcing a defendant to decrypt a hard drive isn’t necessarily self-incriminating, but forcing a defendant to decrypt a hard drive can amount to self-incrimination if the government can’t otherwise show that the defendant has the password for the drive. In that case, forced decryption amounts to a forced confession that the defendant owns the drive.

Adding to this mix is this opposite Eleventh Circuit ruling from the same time as the Fricosu issue was becoming national news. It seems as though this issue will need to be settled by the U.S. Supreme Court, but it could be years before Cert is filed and granted in one of these cases.

Keep checking in, as updates will come as more events unfold around the country in this important electronic privacy and self-incrimination issue.

  1. This, because Fricosu said as much during a phone call from jail, which are all recorded. Bloggers note: this muddies the water quite a bit. Once the government knows there’s evidence, it makes the “self-incriminating” piece to this issue almost null. They want access to the hard drive that they’re POSITIVE has incriminating files on it, by Fricosu’s own words. The issue, though, is if Fricosu can be forced to help when self-incrimination has already kinda happened. []
  2. Sentencing hearing was set by order on 4/16/13 []

The 11th Circuit, Fricosu, and the 5th Amendment

Electronic Decryption Orders

As can be read in our previous posts (here and here), a case in Colorado has caught the attention of the nation in its implications on the 5th Amendment to the United States Constitution.

This case touches on the Constitution, fraud, sex offenses, electronic freedoms, and many other incredibly important topics. Yesterday, the 11th Circuit Court of Appeals took up the topic in a separate case (US v. Doe) and disagreed with their own lower court’s mandate to supply unencrypted data for the prosecution. In Doe, the defendant was ordered to produce an unencrypted version of his hard drive(s). Doe refused to comply. From In RE: GRAND JURY SUBPOENA DUCES TECUM DATED MARCH 25, 2011:

We hold that Doe properly invoked the Fifth Amendment privilege. In response, the Government chose not give him the immunity the Fifth Amendment and 18 U.S.C. § 6002 mandate, and the district court acquiesced. Stripped of Fifth Amendment protection, Doe refused to produce the unencrypted contents of the hard drives. The refusal was justified, and the district court erred in adjudging him in civil contempt. The district court’s judgment is accordingly REVERSED.

Back Story

In Colorado, a defendant (Fricosu) may or may not have incriminating evidence on her laptop hard drive that was seized by authorities. The government asked for, and was granted, an order forcing Fricosu to produce a decrypted copy of that hard drive. Fricosu appealed, saying that doing so violates her 5th Amendment protections against self-incrimination. The appellate court refused to rule until the case was finished in the lower court.

The order forcing Fricosu to give over potentially incriminating evidence, and other similar orders from around the country, has troubling implications on the 5th Amendment in the new, digital world.

…and even further back…

In Fricosu, the presiding judge relied heavily upon the very limited precedents from around the country. Every one of these precedents were from child pornography cases where the courts didn’t seem to mind infringing on 5th Amendment protections, so long as sex offenders were the losers.

As with all history, equal protection exists for everybody, and infringing on one (hated) groups rights will eventually spill over onto the rest of the population.

Equal Protection

It may be hard to do, and sometimes even harder to stomach, but protecting the rights of the least popular citizens of any society is vital. This effort prevents [G]overnment from “taking a mile” for every inch of leeway given to it.

Kudos to the 11th Circuit for making this decision. Let us all hope that, regardless of coexisting immunity given to defendants, the 10th Circuit will follow suit and not allow its lower courts to be so cavalier with the 5th Amendment.

Update: Fricosu, The 10th Circuit, and the 5th Amendment

U.S. v. Fricosu

2/23/12 – As we previously discussed in this post, the government wants to force the defendant in the above-titled case to turn over an unencrypted hard drive that may or may not have incriminating evidence in it. The district judge granted the governments motion to force the defendant to supply the hard drive. This decision was appealed to the 10th Circuit Court of Appeals, who refused to rule.

Note: Demanding an actual password violates the 5th Amendment protections. The presiding judge in Colorado side-stepped this issue by not requiring Fricosu to give up her password but, instead, requiring her to produce the decrypted hard drive by using her password.

Because the appeals court chose to let the case run its course in the lower court before allowing the issue here to be raised on appeal, the ruling stands and Fricosu has until Monday to turn over the unencrypted version (read: a copy) of her laptop hard drive.

The Future

This case has frightening implications on the 5th Amendment to the U.S. Constitution. The process will get rocky. Fricosu can refuse to produce the hard drive1 and face contempt charges,2, or she can comply and face conviction if the incriminating material that the prosecution believes is on the hard drive is actually there.

If she complies and is convicted3, only then can she appeal her conviction to the 10th Circuit Court of Appeals to challenge the order to produce the hard drive that directly led to her conviction.

Updates will be posted as they come in!

  1. If she is able to. Her defense attorney says she may not have the capabilities to even comply with the order []
  2. Under rule 42 of the Federal Rules of Criminal Procedure []
  3. Where that conviction is predicated primarily upon the evidence from the unencrypted hard drive []

In Colorado, Defendants Must do Prosecution’s Job

5th Amendment Under Fire in Fricosu Case

Ramona Fricosu, of Peyton, Colorado is accused of being a part of a mortgage scam. In the course of the investigation against her, search warrants were executed on May 14th of 2010. In that search, the FBI took a Toshiba Satellite M305 laptop.

Then came a problem. Investigators discovered that her laptop’s hard drive was encrypted very very well. Therefore, files that the investigators felt were incriminating1 and vital to the future prosecution were locked away. They concluded it would take a really long time to decrypt the entire drive.

Since this case is being prosecuted in America, all criminal prosecutions are required to be done so with full due process of law2, which includes the right to a speedy trial3. So the decade or more it would take for the prosecution (read: investigative bureau) to decrypt the files would necessarily violate Miss Fricosu’s rights and the charges would not endure.

So what is a judge to do? Option one is to realize that the laws are in place to protect the citizens of the United States against the overpowering force of an unbridled government4. He would therefore throw the case out if the investigation delayed trial longer than a certain period of time. Option two is to order the defendant to decrypt the laptop for investigators.

Last Monday, Judge Robert Blackburn, federal judge for the District of Colorado, chose the second option. In United States v. Fricuso, Judge Blackburn decided that it did not violate the Fricosu’s Fifth Amendment protection against self incrimination to order her to decrypt her laptop hard drive.

Through protests from the defense that this order violates a defendant’s rights, and even an amicus brief from the Electronic Frontier Foundation (EFF) in support of Miss Fricosu, Judge Blackburn decided what could be a dangerous legal precedent on Fifth Amendment rights in the digital age.

From that brief:

“The government makes an aggressive argument here that may have far-reaching consequences for all encryption users. Fricosu will be made a witness against herself if she is forced to supply information that will give prosecutors access to files they speculate will be helpful to their case but cannot identify with any specificity…”

Ruling

Blackburn ruled that the Fifth Amendment posed no barrier to his decryption order. The Fifth Amendment says that nobody may be “compelled in any criminal case to be a witness against himself,” which has become known as the right to avoid self-incrimination. (Read the entire 10-page opinion here)

“I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer,”

Fricosu has declined to decrypt a laptop encrypted with Symantec’s PGP Desktop. Defense counsel Phil Dubois, who once represented Phil Zimmermann, PGP’s creator, is now fighting in the federal courts over encryption again.

“I hope to get a stay of execution of this order so we can file an appeal to the 10th Circuit Court of Appeals … I think it’s a matter of national importance. It should not be treated as though it’s just another day in Fourth Amendment litigation.”
– Phil Dubois

Fricosu actually may not even be able to decrypt the laptop at all. “If that’s the case, then we’ll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do,” said Dubois.

The U.S. Department of Justice argued, as CNET reported last summer, that Americans’ Fifth Amendment right to remain silent doesn’t apply to their encryption passwords. To the U.S. Justice Department, the requested court order represents a simple extension of prosecutors’ long-standing ability to assemble information that could become evidence during a trial. Justice claims that:

“Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.”

Much of the discussion on this issue is about what analogy comes closest to this case. Prosecutors argue that PGP passphrases are like a defendant possessing a key to a safe filled with incriminating documents. That defendant can usually be legally compelled to hand over the key.

Case Law

There are no decisions from the United States Supreme Court on this specific topic, but a number of decisions around the country from lower courts informed Blackburn’s decision. Here is a brief look at decisions from Blackburn’s order:

  • United States v. Kirschner – Kirschner was indicted on receiving child pornography. Judge Borman of the Eastern District of Michigan granted the defendant’s Motion to Quash the government’s attempt to compel a password from Kirschner. From that order:

    “In the instant case, even if the government provides Defendant with immunity with regard to the act of producing the password to the grand jury, that does not suffice to protect Defendant’s invocation of his Fifth Amendment privilege in response to questioning that would require him to reveal his password.”

  • United States v. Boucher – Boucher was another child pornography case, this time from the District of Vermont, involving compelling a password from the defendant. In 2007, Magistrate Judge Jerome J. Niedermeier, ruled that such an action would violate Fifth Amendment protections:

    “Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him. Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop.”

    Later, in an abrupt reversal, U.S. District Judge William Sessions ruled that Boucher did not have a Fifth Amendment right to keep the files encrypted after prosecutors narrowed their request, saying they only wanted Boucher to decrypt the contents of his hard drive before the grand jury, by typing in his password in front of them.

    Boucher appealed to the Second Circuit, and the Appeals Court decided in favor of Boucher5.

  • Accord United States v. Gavegnano, 2009 WL 106370 (4th Cir. Jan. 16, 2009) – Where the “government independently proved that defendant was sole user and possessor of computer, defendant’s revelation of password not subject to suppression”

Conclusion of the Order

Blackburn granted the order in two ways. First, he invoked the All Writs Act6 which “enables the court to issues orders to effectuate an existing search warrant”7.

Second, in a move of legal semantics, Fricosu is not ordered to reveal her password to the government. That has been ruled to violate her Fifth Amendment protections against self-incrimination. Instead, the government only requested that she use her password to decrypt the hard drive in question and then hand the decrypted hard drive over to the government.

Order

THEREFORE, IT IS ORDERED as follows:
1. That the government’s Application Under the All Writs Act Requiring Defendant Fricosu To Assist in the Execution of Previously Issued Search Warrants [#111] filed May 6, 2011, is GRANTED:
2. That Ms. Fricosu’s Motion for Discovery – Seized Hard Drive [#101], filed April 27, 2011, is GRANTED;
3. That on or before February 6, 2012, the government SHALL PROVIDE counsel for defendant, Ramona Camelia Fricosu, with a copy of the hard drive of the Toshiba Satellite M305 laptop computer, serial number 98158161W;
4. That on or before February 21, 2012, defendant, Ramona Camelia Fricosu, SHALL PROVIDE counsel for the government in this case with an unencrypted copy of the hard drive of the Toshiba Satellite M305 laptop computer, serial number 98158161W; and
5. That the government SHALL BE precluded from using Ms. Fricosu’s act of production of the unencrypted contents of the computer’s hard drive against her in any prosecution.

  1. Due to a recorded and ill-advised telephone conversation with Fricosu’s ex-husband who was incarcerated []
  2. See the 14th Amendment to the United States Constitution []
  3. See the 6th Amendment to the United States Constitution []
  4. Over-dramatization intended to illustrate reductio ad absurdum []
  5. Although no news was readily found on the Circuit ruling, the lawfirm of James Budreau, attorney for Boucher, says it did. This leaves the question on whether the move itself was quashed, or if the production of the password (not the production of an unencrypted drive, was ultimately decided against. []
  6. 28 U.S.C. §1651 []
  7. See United States v. New York Telephone Co., 434 U.S. 159, 172, 98 S.Ct. 364, 372, 54 L.Ed.2d 376 (1977) (“This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.”); see also In re Application of United States for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone, – F.Supp.2d – , 2011 WL 3424470 at *44 (D. Md. Aug. 3, 2011) (citing cases in which All Writs Act used to effectuate existing search or arrest warrant). []