In the recent United States v. Gallegos, the Fifth Circuit considered a defendant’s Motion to Suppress evidence of child pornography that had been found during review of cell phone data extracted from the defendant’s cell phone.  Overturning the District Court’s decision to suppress the evidence, the Fifth Circuit held that the defendant had consented to review of his data by signing a government form.  But there was a dissent in the case, and even the majority seemed interested in the question of whether a government agent’s lies to the defendant may have vitiated his consent to the search.  Unfortunately, the defendant did not raise that issue.  The opinion is also an interesting example of the increasingly digital nature of modern criminal investigations.

The Gallegos case began with an investigation into a person-smuggling ring allegedly run by Gallegos’s mother.  During the execution of a search warrant at the mother’s house, the mother asked the agents if her minor children could be released into the custody of their older brother, Gallegos.  The agents agreed, but not without ulterior motive:  Gallegos was also suspected in the smuggling ring, and the agents wanted to talk with him.  When Gallegos arrived, the agents told him that they would need to search his cell phones and vehicle before releasing the children to him.  Although the true purpose of the agent’s request was to search for evidence related to the smuggling ring, they told Gallegos they needed to perform the search in order to ensure the safety of the minor children.  Gallegos signed a generic and broad consent form agreeing to the searches.

Instead of doing a manual search of Gallegos’s phones on the spot, the agents performed a “logical” extraction of the data from the phones.  A “logical” extraction sucks any non-deleted data off of the phone and stores it so that it can be reviewed later.  (A “physical” extraction from the phone would have also pulled any recoverable deleted data off the phone.)  Gallegos was present for one of the logical extractions, but not the other.

Three days after the extractions were completed, the agents reviewed the data from one of the phones and discovered child pornography.  Importantly, this evidence came from the phone that was extracted outside of Gallegos’s presence.  Gallegos was then charged with possession of the pornography.

Gallegos sought to suppress the evidence from the cell phone, and, after a hearing, the District Court agreed.  The District Court reasoned that because the agents did not review the data from the cell phone in Gallegos’s presence and until days after they had returned his phones to him, the search of the data exceeded the scope of his consent.

In a divided opinion, the Fifth Circuit disagreed.  Essentially, the Circuit court held that the broad language of the consent form Gallegos signed, coupled with the fact that Gallegos had seen the agents performing the logical extraction on one of the phones and had not objected at the time, meant that he could not later object that the agents had exceeded the scope of his consent.  Any reasonable person would have realized that the data from the phones was being stored for later review, the Circuit held, and it was up to Gallegos to limit the scope of his consent at the time the agents were interacting with him.

As noted, however, the dissent in the case agreed with the District Court that the agents had exceeded the scope of Gallegos’s consent by extracting one of the phones outside of his presence and reviewing the material later.

Although Gallegos did not argue that the agents’ deception vitiated his consent to the search, it is an interesting question.  Here is a good summary of the law regarding how far police authorities can go in lying to a suspect:

“A consensual search is constitutional if it is voluntary; if it is the product of an ‘essentially free and unconstrained choice.’ ” United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001) (quoting Schneckloth, 412 U.S. at 225, 93 S.Ct. 2041). Voluntariness is “not susceptible to neat talismanic definitions; rather, the inquiry must be conducted on a case-by-case analysis” that is based on “the totality of the circumstances.” United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989) (citing Schneckloth, 412 U.S. at 224–25, 93 S.Ct. 2041). Relevant factors include the “voluntariness of the defendant’s custodial status, the presence of coercive police procedure, the extent and level of the defendant’s cooperation with police, the defendant’s awareness of his right to refuse to consent to the search, the defendant’s education and intelligence, and, significantly, the defendant’s belief that no incriminating evidence will be found.” Chemaly, 741 F.2d at 1352(citation omitted).

Deceit can also be relevant to voluntariness. Because we require “that the consent was not a function of acquiescence to a claim of lawful authority,” Blake, 888 F.2d at 798, deception invalidates consent when police claim authority they lack. For example, when an officer falsely professes to have a warrant, the consent to search is invalid because the officer “announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion—albeit colorably lawful coercion.” Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). And when an officer lies about the existence of exigent circumstances, he also suggests that the occupant has no right to resist and may face immediate danger if he tries. See, e.g., United States v. Harrison, 639 F.3d 1273 (10th Cir. 2011) (agents falsely implied that a bomb was planted in the apartment they sought to search). Deception is also likely problematic for consent if police make false promises. See United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (“There were no promises made to him and no indication of more subtle forms of coercion that might flaw his judgment.”); cf. Alexander v. United States, 390 F.2d 101, 110 (5th Cir. 1968) (“We do not hesitate to undo fraudulently induced contracts. Are the disabilities here less maleficent?”).

In the tax context, we have ruled that when a taxpayer asked whether a “special agent” was involved in the investigation and the Internal Revenue Service answered “no,” consent was involuntary because it was induced by an official misrepresentation that suggested the investigation was only civil, not criminal. United States v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977). Contrary to the dissent’s assertion that “consent searches are almost always unreasonable” when induced by deceit, Dissenting Op. at 1220 (citing Tweel, 550 F.2d at 299), we have never applied this decision outside the administrative context, let alone to a situation in which the suspect is aware of the criminal nature of the investigation. This limitation makes sense in the light of the rule that police officers are permitted to obtain a confession through deception under the Fifth Amendment. See Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) (“Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concerns.”); see also United States v. Peters, 153 F.3d 445, 463 (7th Cir. 1998) (Easterbrook, J., concurring) (“If a misunderstanding of one’s status as a target—misunderstanding abetted by calculated silence and half-truths from agents and prosecutors—does not invariably make a statement involuntary, why should it make a disclosure of physical evidence involuntary?”).

The Fourth Amendment allows some police deception so long the suspect’s “will was [not] overborne,” Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041. Not all deception prevents an individual from making an “essentially free and unconstrained choice,” id. at 225, 93 S.Ct. 2041. For example, undercover operations do not invalidate consent. Lewis v. United States, 385 U.S. 206, 206–07, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966). When an undercover agent asks to enter a home to buy drugs, the consent is voluntary despite the agent’s misrepresentations about his identity and motivation. Id. “If dissimulation so successful that the suspect does not know that he is talking to an agent is compatible with voluntariness, how could there be a rule that misdirection by a known agent always spoils consent?” Peters, 153 F.3d at 464 (Easterbrook, J., concurring). Although we distinguish undercover investigations from those where the officer is “seeking … cooperation based on his status as a government agent,” United States v. Centennial Builders, Inc., 747 F.2d 678, 682 (11th Cir. 1984), an individual who interacts with officers undertakes a knowing risk that the officers may discover evidence of criminal behavior. Cf. United States v. Wuagneux, 683 F.2d 1343, 1348 (11th Cir. 1982) (“[A]ll taxpayers, especially businessmen, are presumed to be aware of th[e] possibility” “that a routine civil audit may lead to criminal proceedings if discrepancies are uncovered.”). That “fraud, deceit or trickery in obtaining access to incriminating evidence can make an otherwise lawful search unreasonable,” United States v. Prudden, 424 F.2d 1021, 1032 (5th Cir. 1970) (emphasis added), does not mean that it must. Particularly because physical coercion by police is only one factor to be considered in the totality of the circumstances, see Chemaly, 741 F.2d at 1352, we should approach psychological coercion the same way. The district court correctly stated the law when it explained that deception does not always invalidate consent.

Prosecutorial misconduct led the Fifth Circuit to overturn a criminal conviction in the recent decision of United States of America v. Thaddeus Beaulieu.  The Beaulieu case involved a charge of criminal contempt arising from Beaulieu’s refusal to testify in court against individuals involved in car jackings and bank robberies.  After Beaulieu asserted a Fifth Amendment right against testimony, the prosecutor in that matter, Assist. U.S. Atty. Michael McMahon, granted Beaulieu immunity from prosecution under 18 U.S.C. §§6002-6003, which served to compel testimony over a Fifth Amendment claim of privilege against self-incrimination.  Yet, when called again by McMahon to testify, Beaulieu again refused.  Beaulieu was then charged with criminal contempt.

The same Assistant U.S. Attorney, McMahon, was appointed to prosecute Beaulieu’s contempt case.  The defense objected to that appointment because of McMahon’s communications with Beaulieu in the underlying matter, but the district court denied the motion to disqualify.  At trial, Beaulieu admitted he violated a reasonably specific court order but claimed he did not do so “willfully” and, thus, could not be convicted of contempt.  However, following a half-day trial, Beaulieu was found guilty of criminal contempt by the jury.

Beaulieu appealed, based on McMahon’s alleged prosecutorial misconduct.  To prevail, Beaulieu had to show: (1) the prosecutor made an improper remark; and (2) there was prejudice. United States v. Insaulgarat, 378 F.3d 456, 461 (5^th Cir. 2004).  The Government conceded McMahon made numerous “improper remarks” throughout the trial, including expressing his personal opinion on the merits of the case and the credibility of the witnesses; making arguments at closing based on evidence not presented at trial; and telling the jury to convict Beaulieu not based on the facts and law but out of respect for a chief judge of federal district court.

Prosecutorial misconduct alone does not warrant the vacatur of a conviction; a prejudicial effect must also be shown.  Darden v. Wainwright, 477 U.S. 168, 181 (1986).  To prove such prejudice, courts can consider “(1) the magnitude of the prejudicial effect of the statements, (2) the efficacy of any cautionary instructions, and (3) the strength of the evidence of defendant’s guilt.” United States v. Mendoza, 522 F.3d 482, 492 (5^th Cir. 2008).  The Fifth Circuit described the magnitude of McMahon’s improper remarks as “overwhelming” and noted a lack of cautionary instructions.

Because Beaulieu had received a specific order to testify and obviously violated that order, Beaulieu’s trial defense had turned on whether Beaulieu willfully violated that order.  “Willful” means a “gross deviation from what a reasonable person would do.”  United States v. Allen, 587 F.3d 246, 255 (5^th Cir. 2009) (per curiam).

According to the Fifth Circuit, it was impossible to separate McMahon’s misconduct from the other evidence against Beaulieu, and in fact his mere presence as the prosecutor in Beaulieu’s case was problematic.  In the underlying car jacking/bank robbery case, McMahon had threatened to prosecute Beaulieu for perjury if Beaulieu’s trial testimony deviated at all from the FBI’s summary of an interview previously conducted with him.  The evidence at the contempt trial showed that Beaulieu disagreed with the summary in two respects, and would have had to testify inconsistently with the summary in those two respects.  Given these facts, the Fifth Circuit held that Beaulieu’s refusal to testify after McMahon’s threat was an “understandable and good-faith effort to avoid perjury, not a willful violation of a court order.”  A failure or refusal to attend and testify made in good-faith does not constitute criminal contempt.

The Fifth Circuit concluded by reminding prosecutors of the unique role they play in the court system: “Regardless of the circumstances, a prosecutor must always adhere to the highest ethical standards of the legal profession.  The integrity of our criminal-justice system depends on it.  The Government’s conduct fell short of those standards.”  Accordingly, the Fifth Circuit vacated Beaulieu’s conviction for criminal contempt.

The Fifth Circuit Court of Appeals recently decided the case of United States v. Suarez, which involved charges of “structuring” currency transactions.   Thirty-one U.S.C. § 5313(a) requires banks to file a Currency Transaction Report (CTR) whenever someone conducts a transaction involving more than $10,000 in cash.  Illegal “structuring” occurs when someone conducts multiple transactions to avoid causing a CTR to be filed.  For example, instead of withdrawing $15,000 all at one time, someone who is trying to “structure” the transactions might make three $5,000 withdrawals over the course of several days.  This is a crime.

That’s what the defendant in Suarez did, according to the Fifth Circuit opinion.  An office manager at a real estate company that was under investigation for money laundering drug proceeds, the defendant would use her personal account to buy cashier’s checks made out to the company in amounts less than $10,000, and the company would reimburse her.  The opinion doesn’t say why the defendant was making these transactions, but money laundering was strongly suggested.  The defendant was ultimately convicted at trial and sentenced to 13 months in prison and a forfeiture of $52,042.

The discussion of the forfeiture is the most interesting part of the Suarez opinion.  The defendant appealed the forfeiture order, claiming that it was excessive under the Eighth Amendment, which prohibits excessive fines. She also argued that the money involved in the offense was not her personal money, and so it would be unfair to require her to forfeit $52,000 of her own funds.

The Court rejected both of these arguments.  With regard to ownership of the money involved in the crime, the Court noted, first, that there was no evidence in the record showing who exactly the money had belonged to, and, second, that the District Court had concluded the defendant acted in reckless disregard for whether she was involved in money laundering.  It was therefore appropriate to order the forfeiture of her personal funds.

Regarding the general objection that the forfeiture was excessive in amount, the Fifth Circuit applied the test from United States v. Bajakajian, 524 U.S. 321 (1998), the lead Supreme Court case on excessive fines.  Under Bajakajian, the Fifth Circuit considers the following factors when determining whether the fine or forfeiture is “grossly disproportionate” to the offense:  “(1) the essence of the defendant’s crime and its  relationship  to  other  criminal  activity;  (2)  whether  the  defendant  was  within the class of people for whom the statute of conviction was principally designed; (3) the maximum sentence, including the fine that could have been imposed;  and  (4)  the  nature  of  the  harm  resulting  from  the  defendant’s  conduct.” United States v. Mora, 644 F. App’x 316, 317 (5th Cir. 2016).

Applying these factors to the Suarez situation, the Court noted that the forfeiture amount was significantly less than the maximum allowed as a fine under the structuring statute (up to $250,000).  The forfeiture amount was also less than double that recommended by the Sentencing Guidelines.  Although double the recommended amount sounds like a lot, the Fifth Circuit’s case law has permitted forfeitures that were many times the amount recommended by the Guidelines.  Finally, there were many signs and indications that the Suarez defendant had been engaged in money laundering, and so she was not an innocent victim of government overreach.  Accordingly, the Fifth Circuit affirmed the sentence of the District Court, including a forfeiture in the amount of $52,042.

Stephen Haedicke’s article on whether the Monell standard should apply to protect private companies who have been sued under Section 1983 has been published in the most recent issue of the Federal Lawyer, a publication of the Federal Bar Association.  You can read the article below.

Today, the Fifth Circuit release two new opinions in civil rights cases.  Unfortunately for the plaintiffs in these cases, in both the Fifth Circuit reversed the district court’s denial of the defendants’ motions for summary judgment and held that the defendants were entitled to have the case dismissed under the doctrine of qualified immunity.  The doctrine of qualified immunity “shields government officials from civil damages liability unless the official violates a statutory or constitutional right that was clearly established at the time of the challenged conduct.”  As these cases demonstrate, the doctrine can provide powerful protection against civil rights claims.

In the first case, Wigginton v. Jones, a university professor filed suit after he was denied tenure at the Mississippi state college where he taught.  He claimed that the tenure process had proceeded in an arbitrary and capricious fashion, and a jury had agreed and awarded him $200,000 in back pay and mental and emotional damages after a trial.  Given the jury award, there was obviously something disturbing about the professor had been treated.  However, the defendants appealed the verdict, and the Fifth Circuit held that the professor-plaintiff had not had a clearly established property interest in his job such that he could claim his rights had been violated.  The Circuit noted that the due process clause of the US Constitution protects life, liberty, and property, but it is state law that defines whether someone has a property interest in some aspect of their employment that must be protected.  In this case, the Court held that it was not clearly established that Mississippi law provided the professor a property interest in a fair tenure review process.  Therefore, the defendant officials were entitled to qualified immunity and the jury verdict had to be reversed.

In the second case, Baldwin v. Dorsey, the plaintiff had been found incoherent in her car, stopped at a red light.  EMS and the police were called.  Ultimately, the defendant officer had arrested the plaintiff and taken her to the police station to conduct a blood test to see if she was intoxicated.  En route, the plaintiff claimed to have told the officer she was feeling suicidal and asked to be taken to the hospital.  The defendant officer declined to do that, and instead kept the plaintiff monitored and incapacitated from harming herself for approximately three hours by handcuffing her to a bench at the station.  The woman was eventually taken for a psychiatric evaluation.  She later sued, claiming the three hour delay in bringing her to the hospital had traumatized her.  Her claim was premised on the well-established law that an officer cannot be “deliberately indifferent” to a known risk of harm to a person who is in their custody.  Perhaps unsurprisingly, the Fifth Circuit granted qualified immunity for the officer.  The Court found that because the plaintiff had been monitored and handcuffed during the three hour period, she did not actually face a risk of suicide during that period.  The Court also found that, under the circumstances presented in this case, it was not clearly established that the officer needed to take the defendant to the hospital immediately.  The Court distinguished another recent Fifth Circuit case which had denied qualified immunity where a teenager in a drug-induced psychotic state had repeatedly slammed his head into the back window of a police cruiser.  Although it was clear in that prior case the officers should have taken the teenager for medical treatment, the same could not be said for plaintiff Baldwin.

This past week I was honored to receive the Outstanding Section or Division Leader Award from the Federal Bar Association.  Presented during the FBA’s annual meeting (held this year in Tampa, FL), the award resulted from my on-going work as the chair of the FBA’s Civil Rights Section.  You can see a quick video of Nate Olin presenting the award (thanks Nate!) and a picture of the award itself below.  Thank you very much to everyone involved in the FBA for this award, but I’d especially like to thank Wylie Stecklow, the immediate past chair of the Section, for all the work he has put in re-invigorating the Civil Rights Section, and also Robin Wiley, the current chair-elect, for the support she’s shown me during my tenure.  And because the work of the Section is truly a team effort, I’d be remiss not to thank all of the other board members who have kept the Section active (Eric Foley, Steven Dane, Rob Sinsheimer, Kyle Kaiser, Eileen Rosen, Kevin Golembiewski, Caryl Oberman, Bonnie Kift, Lindsey Rubinstein).   Thanks to all.

FBA award 2019

FBA 2019 Haedicke award

In late 2018, Congress passed the First Step Act, which became law when the President signed it on December 21, 2018.  Although it is literally just a first step in the process of true criminal justice reform, the Act nevertheless contains a number of very significant reforms for people involved in the federal criminal justice system.  Here are a few highlights:

— The First Step Act restricts the types of prior drug felonies that can be used to enhance sentences for drug offenses under federal law.  Under prior law, any prior drug felony could be used to enhance sentences.  Now, only a “serious drug felony” can be used to enhance a sentence.  A “serious drug felony” is defined as one for which the person actually served a term of imprisonment of more than 12 months within 15 years of the current offense.

— The First Step Act substantially reduces the mandatory minimum penalties applicable to many drug crimes.

— The Act broadens the applicability of the “safety valve” provision in federal sentencing law, which permits courts to sentence some defendants to less than the mandatory minimum for their offense if the defendant meets certain criteria.  The new law allows some offenders with significantly higher criminal history scores to obtain the benefits of the safety valve provision in certain circumstances.

— The First Step Act prohibits “stacking” of 924(c) charges.  A violation of 18 USC 924(c) occurs when someone uses a firearm in the course of another crime.  A first offense has a mandatory minimum of 5 years, which must be served consecutively to any other sentence.  With a second offense, the mandatory minimum jumps to 25 years.  Under prior law, a person could be subject to the 25 year minimum if the government could prove the person had used a gun twice in two separate crimes, even if the person had not previously been charged and convicted of the first crime before they were charged with the second.  Now, there has to be a conviction for one 924(c) charge in a separate indictment before someone can be subjected to the enhanced mandatory minimum.  In other words, the enhanced minimum cannot be applied where the government “stacks” multiple 924(c) charges in one indictment.

On February 15, 2019, the Federal Bar Association’s Civil Rights Section presented its second bi-annual Civil Rights CLE, the Civil Rights Etouffee.  As the Chair of the Section, I both helped to organize the Etouffee and served as a moderator during a panel discussion of civil rights cases based on the overdetention of state prisoners (attorneys Emily Washington and William Most provided the substantive information regarding these types of cases).  With over 100 attendees coming to participate in the program, it was once again a sold-out success.  Here are some pictures from the event– please feel free to contact me if you are interested in attending the next Civil Rights Etouffee in New Orleans.

In December 2018, I was honored to speak on a panel of attorneys regarding prosecutions of public officials in Louisiana.  The panel was part of the Louisiana Association of Criminal Defense Lawyers’ annual Last Chance Seminar, and the other panelists were Catherine Maraist (Baton Rouge), John McLindon (Baton Rouge), and Elton Richey (Shreveport).  The discussion was guided by a Powerpoint presentation– which I’ve attached below– that I put together after brainstorming with the other panelists regarding common types of statutes used to prosecute public officials.  As is evident from the complexity of the statutes involved, defending these types of cases is difficult business, and the stakes are obviously quite high.  I think everyone who attended the presentation, including me, learned something new about how to successfully defend against these types of white-collar prosecutions.

Public Corruption Laws and Cases- Louisiana- 2018 LACDL

In 2017, Louisiana embarked on a bold reform of its criminal justice system, dubbed the Louisiana Justice Reinvestment Act.  The new law made substantial changes to the criminal justice system in Louisiana, many of which will result in lessening of Louisiana’s notoriously high imprisonment rates.  Sentencing guidelines for many non-violent offenses were reduced, and there were substantial changes to Louisiana’s Habitual Offender Law.

There is an excellent guide to the Louisiana Justice Reinvestment Act available at the Louisiana State Bar’s website or by following the link below.

https://www.lsba.org/NewsArticle.aspx?Article=855959d5-9538-4272-bc73-055ad4b9fe64