The U.S. Court of Appeals for the Second Circuit was quite busy in July. It issued three WCR-worthy opinions.
The D.C. Circuit vacated the conviction of a family of tax preparers in United States v. Davis. Sherri Davis owned a tax-preparation business that the Internal Revenue Service determined was filing returns with false charitable and business deductions. The government prosecuted Davis and her son, Andre Davis, for involvement in the scheme. At trial, Sherri's niece testified about the scheme. Both Sherri and Andre were convicted at trial and appealed, claiming that the government engaged in prosecutorial misconduct during its closing arguments and that the district court made various evidentiary errors. "Upon consideration of the weakness of the evidence offered against Andre and its centrality to the issue of his mens rea," the D.C. Circuit concluded "that the prosecutor's blatant misstatements of key evidence during closing arguments, in the absence of any steps to mitigate the resulting prejudice, require reversal of Andre's convictions." The court noted that an examination of the government's closing arguments "reveals multiple misstatements of [its] evidence and, given the gaps in the government's evidentiary case, their prejudicial effect is readily apparent." It also concluded "that the evidence against Andre was insufficient and consequently he is not subject to retrial." As to Sherri, it found no similar prejudice and affirmed her convictions but remanded for resentencing.
Back in February, Senator Ron Wyden (D-Ore.) sent a letter to John F. Kelly, the then-Secretary of the Department of Homeland Security. The letter raised questions about media reports that U.S. Customs and Border Protection (CBP) agents were pressuring American citizens to provide the agents "access to their smartphone PIN numbers or otherwise provide access to locked mobile devices." Senator Wyden then sent a letter to CBP's acting commissioner, Kevin McAleenan. Commissioner McAleenan responded by explaining the legal authority the CBP asserts for such searches. He explained that "because any traveler may be carrying an electronic device that contains evidence relating to offenses such as terrorism, illegal smuggling, or child pornography, CBP's authority to search such a device at the border does not depend on the citizenship of the traveler." He emphasized that CBP agents would not prevent a citizen from entering the United States, but they might seize the electronic device for further examination if appropriate. He also stated that "CBP does not access information found only on remote servers through an electronic device presented for examination, regardless of whether those servers are located abroad or domestically. Instead, border searches of electronic devices apply to information that is physically resident on the device during a CBP inspection." So, it appears travelers need not be concerned about CBP seeking to access information stored remotely, but would do well to anticipate periodic searches of the electronic devices of people entering the United States.
The Seventh Circuit in United States v. King declined defendant Carnell King's invitation to direct district judges to consider whether the parsimony principle of 18 U.S.C. §3553(a) renders the guidelines inapplicable because they call for a penalty that is too harsh under the circumstances. The parsimony principle directs district courts to impose sentences that are "sufficient, but not greater than necessary" to effectuate the purposes of sentencing. In the case, King pleaded guilty and did not dispute that the district court properly calculated the advisory guidelines range. In fact, after doing so, the district court reasoned that the guidelines range overstated King's culpability and imposed a below-guidelines sentence. Given these circumstances, the Seventh Circuit noted "it is hard to see why King is appealing." King's argument was, in essence, that the sentencing court should have considered whether the guidelines violated the parsimony principle before considering the guidelines range and the other provisions of §3553(a). The court rejected his argument. It emphasized that "a defendant is always free to argue that the Guidelines, taken as a whole or when particular provisions are examined, recommend an unduly harsh sentence in his case." The place to do that, it reasoned, was when arguing that the court should vary from any guidelines calculation. But the "parsimony principle does not require the district judge to consider the same argument twice, once in a novel adjustment to the guideline calculation itself and again under §3553(a)."
On September 25, DC-based counsel Steven Cash will be a featured speaker at the National Forum on the Foreign Agents Registration Act (FARA), an event presented by the American Conference Institute and held in Washington, DC.
Steven Cash moderated a panel discussion hosted by Culper Connect, an alumni association of former United States Government public servants from the U.S. Intelligence Community.
Day Pitney Newsletter
Day Pitney Newsletter
Steven Cash authored an article, "Why Immediate Public Release of Mueller Report Would Be Bad for National Security, Politics," published by The Hill.
Steven Cash was quoted in an article, "Trump Remarks Deepen Distrust with Intelligence Community," published by The Hill.
Jed Davis was quoted in an article, "Rise Of Nation-State Hacks Doesn't Give Cos. A Free Pass," published by Law360.
DC counsel Steven Cash was quoted in an article, "Five Takeaways from Barr's New Powers in 'Spying' Probe," published by The Hill.
Former federal prosecutor Stan Twardy was featured on the RNN-TV program "Richard French Live," a nightly news talk show.
Stan Twardy was quoted in an article, "5 Things to Know About John Durham—Barr's Pick to Probe Root of Russia Investigation," published by the Connecticut Law Tribune.