The Federal Docket is a monthly newsletter providing lawyers and the community a summary of recent important decisions in the area of federal criminal law from the United States Supreme Court and the Circuit Courts of Appeal. The opinions are compiled, summarized and analyzed by Tom Church, an attorney in our firm’s federal criminal defense practice.

In The News

  • Feds in Portland Imposing Bond Conditions Prohibiting Protesting

    Federal authorities in Portland and other cities have been targeting and arresting protestors and charging them with federal crimes, often petty offenses occurring on federal property. According to a recent article by ProPublica, protestors in Portland being arrested and charged with federal misdemeanors have been subjected to bond conditions prohibiting them from participating in future protests. One order prohibits the defendant from attending "any other protests, rallies, assemblies or public gathering in the state of Oregon." Legal experts have criticized these conditions as violating the First Amendment.

  • Updated List of Compassionate Release Grants

    Our firm has maintained a running list of compassionate release grants, including those available on Westlaw and other sources. Where available, each listed case includes the name of the facility, the inmate's medical conditions, as well as their sentence and projected release date, so that practitioners can simply search (via Ctrl + F) for cases based on their client's condition or facility. Practitioners can also search "Already Covid-19 Positive" for cases involving inmates who have tested positive or recovered, or search "No Confirmed Cases" for cases involving inmates released from facilities with 0 reported cases.

  • DOJ Announces Another String of CARES Act Fraud Charges

    Throughout July, the Department of Justice has been announcing an increasing number of prosecutions against individuals accused of "COVID Relief Fraud," also referred to as CARES Act Fraud. Most cases involved the CARES Act's Paycheck Protection Program (PPP). The past week saw cases brought across the country from California to Florida and included charges for wire fraud, bank fraud, false statements, money laundering, and healthcare fraud.

  • Feds Prosecuting Man for Threatening Police On Snapchat

    The U.S. Attorney's Office in West Virginia is charging an 18-year-old man with a federal crime based on alleged threats to police officers that he posted on Snapchat, where he posted that he wanted to shoot officers who gave him a citation for a marijuana offense. Prosecutors are charging him with interstate communications containing a threat to injure the person of another under 18 U.S.C. 875(c), which carries up to five years in prison.

  • Feds Charge Florida Men Using Their Church to Sell Fake COVID-19 Cure

    On July 8, 2020, federal prosecutors in the Southern District of Florida charged a father and his adult sons with criminal violations relating to distribution of misbranded drugs. According to the criminal complaint, the government is alleging that the men operated a church, the "Genesis II Church of Health and Healing," through which they sold and marketed "Miracle Mineral Solution," a bleaching agent that the men allegedly sold as a "miracle cure-all that could treat, prevent, and cure a variety of serious diseases and disorders, including cancer, Alzheimer's, autism, malaria, Parkinson's, multiple sclerosis, and HIV/AIDS." Most recently, the men promoted Miracle Mineral Solution as a cure for COVID-19.

  • DOJ Announces “first criminal securities fraud prosecution related to the COVID-19 pandemic”

    The DOJ announced charges against the president of a California-based medical company, alleging a scheme to solicit investors, manipulate his company’s stock price, and commit healthcare fraud  based on his company submitting false claims to the federal government for COVID-19 testing. The charges include one count of securities fraud and one count of conspiracy to ...

  • DOJ Announces Several Indictments Involving CARES Act Fraud

    Throughout June, the Department of Justice announced a series of prosecutions initiated against individuals and business accused of “COVID-Relief Fraud,” the DOJ’s term for fraud charges involving the recently enacted Coronavirus Aid, Relief, and Economic Security (CARES) Act. Several of these charges involved the Paycheck Protection Program (PPP) loans issued by the SBA. In an Illinois ...

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Recent Supreme Court Opinions

  • Andrus v. Texas (U.S. Supreme Court, June 2020)

    In a per curiam opinion, a majority on the Supreme Court vacated a defendant's death sentence and held that his trial counsel was constitutionally ineffective based on his failure to perform mitigation investigation, putting up mitigating evidence that backfired by bolstering the state's case, failing to investigate the state's aggravating evidence, and failing to present significant mitigating evidence that he could have discovered.

  • Ramos v. Louisiana (U.S. Supreme Court, April 2020)

    In a patchwork opinion involving a lengthy discussion of stare decisis, a majority of the Court held that the Sixth Amendment right to a unanimous verdict in a criminal prosecution applies to the states through the Fourteenth amendment.

  • Kelly v. United States (U.S. Supreme Court, May 2020)

    In a unanimous opinion, the Supreme Court reversed the convictions of the Port Authority officials involved in the infamous "Bridgegate scandal," holding that their convictions for wire fraud on a federally funded program, predicated on their blocking off certain lanes as political retribution against an opposition mayor, were not supported by sufficient evidence because they did not involve a scheme "to obtain money or property."

  • Kansas v. Charles Glover, Jr. (U.S. Supreme Court, April 6, 2020)

    In an 8-1 opinion, the Supreme Court held that an officer has reasonable suspicion justifying a traffic stop when he runs a vehicle's license plate and learns that the registered owner's license has been revoked or suspended. The Court held that it is reasonable for an officer to assume that the vehicle's driver is the registered owner, even where the registered owner's license has been suspended, because the data shows that many individuals who have suspended licenses continue to drive anyway.

  • Kahler v. Kansas (U.S. Supreme Court, March 2020)

    The Supreme Court held that Kansas's insanity defense, which turns on whether the defendant was capable of understanding his conduct as opposed to understanding whether his conduct was morally wrong, did not offend due process. The Court stressed that the insanity defense changes in response to developments in mental health science and that state governments are better equipped to design the defense.

  • Shular v. United States (U.S. Supreme Court, February 2020)

    In a unanimous decision, the Supreme Court held a defendant's prior conviction under state law qualifies as a "serious drug offense" under the ACCA if the defendant's conduct involves "manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance" as spelled out under the statute. In doing so, the Court rejected a categorical approach that would require courts to match the defendant's state offenses to a "generic offense."

  • McKinney v. Arizona (U.S. Supreme Court, February 2020)

    The Supreme Court held that allowing a state appellate court to reweigh the aggravating and mitigating factors in a capital case under Clemons v. Mississippi is a permissible remedy after a finding on collateral review that the sentence court failed to consider mitigating factors in violation of Eddings v. Oklahoma.

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Recent Circuit Court Opinions

  • United States v. Herman Sanders (5th Cir. July 2020)

    The Fifth Circuit reversed a defendant's conviction for enticing or transporting a minor for purposes of producing child pornography under 18 U.S.C. § 2251 because there was insufficient evidence that the defendant had knowledge that his victims were minors.

  • United States v. Juan Solano (2nd Cir. July 2020)

    The Second Circuit reversed a defendant's conviction. The defendant testified at trial, and the district court plainly erred in instructing the jury that any witness with an interest in the outcome of the case may have a motive to testify falsely, as it cut against the presumption of innocence and prejudiced the defendant.

  • United States v. Michael Vickers (5th Cir. July 2020)

    The Fifth Circuit reversed the district court that vacated a defendant's sentence under the ACCA and Career Offender enhancement, holding that the defendant’s prior state murder conviction under Texas law qualified as a violent felony under the ACCA despite the prior statute not distinguishing between direct and indirect force.

  • United States v. Lemont Webb (4th Cir. July 2020)

    The Fourth Circuit affirmed the defendant's convictions on several grounds but vacated his life sentence for drug and money laundering offenses, holding that the sentencing court failed to consider several non-frivolous arguments the defendant raised, including arguments regarding lower recidivism for older offenders, sentence disparities with co-defendants, and the defendant's legitimate work history.

  • United States v. Michael Bourquin (6th Cir. July 2020)

    The Sixth Circuit vacated a defendant's sentence based on insufficient evidence to support the district court's application of the four-level enhancement under U.S.S.G. 2A6.1(b)(4), which applies when the offense a substantial expenditure of funds to...otherwise respond to the offense. The government had not presented any specific accounting of its expenses in responding to the offense, nor had it distinguished its expenses as "substantial" as opposed to "typical."

  • United States v. John Hall (11th Cir. July 2020)

    The Eleventh Circuit affirmed the defendant's 480-month sentence for receipt of child pornography, holding that the sentencing court properly considered hearsay statements found in case files from a prior sex offense case involving the defendant, including depositions of the victims, since the statements were supported by sufficient indicia of reliability. The Court also held the district court was not required to provide notice prior to varying upwards from the Guidelines since notice is only required prior to upward departures and the court was explicitly varying upwards and relying on the 3553 factors in doing so.

  • United States v. Steven Deason (11th Cir. July 2020)

    The Eleventh Circuit upheld a conviction for attempted online enticement of a minor and attempted transfer of obscene matter to a minor, holding that officers did not err in failing to advise the defendant of his Miranda rights where he was informed that he was not under arrest and could ask the officers to leave and because he his statements were voluntary. The Court also held that testimony describing an allegedly obscene video and corresponding screenshots are a sufficient substitute to introducing the videos in their entirety.

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