KSM and Others to New York?

Interesting.  According to the AP (and others), five Gitmo detainees will be tried in a civilian court in New York for the 9/11 attacks.  Among these detainees will apparently be Khalid Sheikh Mohammed, who purportedly confessed to masterminding the attacks after severe waterboarding.  Which raises all sorts of evidentiary issues, as Charlie Savage of the New York Times points out:

The decisions about how to prosecute Mr. Mohammed and Mr. Nashiri have been particularly difficult because their defense lawyers are expected to argue that they were illegally tortured by the Central Intelligence Agency during their confinement, tainting any evidence gathered from their interrogations.

In addition to the civilian trial(s), five others will be sent to a brig (probably in South Carolina) for trial before a military commission.  Attorney General Eric Holder is expected to make an official announcement at 11a today.

This announcement, like the under-reported news that President Obama has sent war planners back to the table to come up with better ideas about Afghanistan, signals a potential shift in Obama’s resolve.  Neither decision will be politically popular, and we haven’t seen Obama flex his muscles in quite a while.

Federal Robbery Sentencing

Like I’ve said before, “street crimes” don’t often get prosecuted in federal court, even though they technically can.  Which is why this announcement from last week is surprising:  an Indianapolis man has been sentenced to 22 years in prison for robbing a Steak ‘n Shake and brandishing a firearm while doing so.  (Source)  According to WIBC, US Attorney Tim Morrison, the man was tried in federal court because the Hobbs Act allows it.

This, again, is technically true.  Codified at 18 U.S.C. § 1951 et seq., the law states that it is a federal crime for a person to interfere with commerce by extortion or robbery.  The potential punishment for doing so is imprisonment up to 20 years, a fine, or both.  How, then, did he receive 22 years?  It’s a good question.  Most likely, there are a few other components to the case that haven’t been publicly disclosed, such as other charges, and it is entirely possible that the sentencing judge enhanced the sentence based on a variety of factors, including the individual’s criminal history record: “If reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes, an upward departure may be warranted.”  (Source)  If the court does depart upward, however, it must do so on the record.

Interesting case, though, and it does raise an eyebrow or two.

Federal Hate Crimes Legislation

Earlier today, I mentioned that the FBI (and other federal agencies) doesn’t typically investigate “street crimes” like assault.  Nonetheless, there’s a new federal crime to be aware of today, and it’s one that proponents of the legislation have been wanting for a very long time.

According to the AP and to the Human Rights Campaign, the new legislation was tacked onto a defense spending bill.  What does it cover?  Hate crimes.

From what I gather, a new section of the U.S. Code will be created: 18 U.S.C. § 249, which will be part of Chapter 13, and which will make it a crime to willfully cause injury (or attempt to cause injury) to a person based on that person’s actual or perceived race, gender, national origin, or sexual orientation.  The punishment will be imprisonment for up to 10 years, or for any term of years up to life if death, kidnapping, or sexual abuse occurs (or attempts to do such are undertaken).  Congress also stated that nothing about the law should be construed as a limit on expression: “Nothing in this division shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.”

Murder as Terrorism? Hold up a moment…

It is somewhat axiomatic that the FBI doesn’t generally investigate so-called “street crimes” such as assault, rape, murder, and even low-level drug use.  This isn’t because there aren’t federal laws for these activities.  For example, 18 U.S.C. §§ 1111 et seq. proscribes homicide,  18 U.S.C. §§ 2241 et seq. proscribes sexual abuse, 18 U.S.C. §§ 111 et seq. proscribes assaults, and 21 U.S.C. § 844 proscribes “simple possession” of controlled substances.  Despite having laws that could be enforced by federal authorities, though, it is generally considered an inappropriate use of resources when the states can handle the cases just fine, thank you very much.

That changes, apparently, when murder gets called terrorism.

Medical Marijuana Update … Update

The United States Department of Justice has issued a press release on the changes to the prosecution of medical marijuana providers.  According to Attorney General Holder,

“This balanced policy formalizes a sensible approach that the Department has been following since January: effectively focus our resources on serious drug traffickers while taking into account state and local laws.”

The release also contains a link to the Guidelines memo, which can be found here.  An example of an inefficient use of federal resources is provided in the memo:

“As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.”

However, if the individual is not in clear and unambiguous compliance, that individual could still face federal prosecution.

It’s a Start

According to the St. Louis Dispatch, Illinois Senator Dick Durbin will be introducing legislation to rectify the severe disparity in cocaine base and cocaine powder federal punishment.  Currently it takes 500 grams of powder cocaine to achieve the same penalty for just 5 grams of cocaine base.  (Cocaine base is better known as “crack.”)  Apparently the legislation would make the ratio 1:1.  This is good, and I hope it’s just the first step toward reforming the federal criminal justice system.

Terrorism Charges

As expected, according to the AP, one of the individuals arrested last week in Denver for making false statements has apparently been indicted in New York on conspiracy to use weapons of mass destruction charges.

Under 18 U.S.C. § 2332a, it is a crime to conspire to use a weapon of mass destruction against, among other things, any person or property in the United States.  It is a crime punishable by up to life imprisonment.  A couple of really important caveats about this charge, though.  First, if the alleged target is a person or property located in the United States, some jurisdictional requirements need to be satisfied; one of the following must be shown:

• the mail or any facility of interstate or foreign commerce is used in furtherance of the offense;
• such property is used in interstate or foreign commerce or in an activity that affects interstate or foreign commerce;
• any perpetrator travels in or causes another to travel in interstate or foreign commerce in furtherance of the offense; or
• the offense, or the results of the offense, affect interstate or foreign commerce, or, in the case of a threat, attempt, or conspiracy, would have affected interstate or foreign commerce;

Second, “weapons of mass destruction” does not mean what many think it means.  Yes, it means the nuclear, biological, or chemical weapons which were the supposed reason for invading Iraq.  But it has a much broader definition than just the nasty stuff.  It also includes a destructive device as defined by 18 U.S.C. § 921:

• a bomb,
• a grenade,
• a rocket having a propellant charge of more than four ounces,
• a missile having an explosive or incendiary charge of more than one-quarter ounce,
• a mine, or
• a device similar to any of the devices described in the preceding clauses.

It also means a rifle (other than a shotgun) having a barrel with a bore of more than one-half inch in diameter.  Antique rifles are exempted from this particular definition, however.  Flare guns, too.

Pretrial Detention

I mentioned the other day that certain individuals had been arrested in Denver for allegedly making false statements to investigators.  According to Agence France-Presse, two of the men have been ordered to be detained pending further review, while a third has been released on bond.

Pretrial detention hearings are a crucial part of the federal criminal process, occurring at the time of the individual’s initial appearance.  During the hearing, the magistrate judge makes a determination of two things: whether the individual is a flight risk, and whether the individual poses a danger to the community.  See 18 U.S.C. § 3142(b) (“The judicial officer shall order the pretrial release of the person … unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.”)

In making this determination, the magistrate judge has certain statutory considerations he must take into account, including the nature and circumstances surrounding the charge, specifically, “whether the offense is a crime of violence, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device.”  Id. § 3142(g)(1).  And here’s where things get a little sticky, because as far as I’ve seen, the only charges levied at this point are false statements, albeit false statements involving terrorism.  So, facially, one wonders whether false statements involving terrorism is a “Federal crime of terrorism.”  It may become a moot point, as it appears from most news accounts that the individuals were arrested on a criminal complaint in the anticipation that an indictment would issue shortly, which indictment might even get superseded with even more charges.

It also is important to note that the standard Rules of Evidence that apply to trials do not apply to detention hearings.  Magistrate judges may hear hearsay evidence, and can hear evidence about activities which don’t necessarily apply to the specific charges.

False Statements and Terrorism

Well, it looks like three people in Denver were arrested for giving false statements in what is being called a terrorism investigation.  (Source.)

False Statements is one of those federal criminal laws that gets used a lot, and it’s fairly simple: under 18 U.S.C. § 1001, it is a crime for a person to knowingly and willfully make any materially false, fictitious or fraudulent statement or representation during a matter which is under the purview of the executive, judicial, or legislative branches.  (There are a few other components to section 1001, but this is the part that trips most people up.)

Now, “materially” means that it has the tendency to influence the course of the investigation, and it’s really, really, really important to note that the threshold is pretty steep.  There’s not even an “exculpatory no” doctrine to account for nervousness.

So, we’ll see what happens with this case.

ICE and Sex Tourism

Not a lot of people realize it, but the United States exercises one of the most expansive concepts of extraterritorial jurisdiction in the entire world.  In layman’s terms, the United States aggressively seeks to punish criminal acts done in other countries.

For example, ICE recently arrested a Hawaii resident for engaging in sexual conduct with a minor in Cambodia.  (This practice is sometimes known as sex tourism.)  According to ICE, his arrest marked the fourth such arrest in the past week for sex acts with minors in Cambodia.

The arrest comes under part of the PROTECT Act (which, like the USA PATRIOT Act, is one of those ridiculously convoluted acronyms that Congressional types like to develop, standing for “Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today”).  Under 18 U.S.C. § 2423(b), it is a crime for a United States citizen or permanent resident to travel in foreign commerce for the purpose of engaging in “illicit sexual conduct.”  Illicit sexual conduct is defined as:

1. a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States; or
2. any commercial sex act (as defined in section 1591) with a person under 18 years of age.

A person convicted of violating this law can be punished with up to 30 years in prison.  And as is clear from the amount of cross-referencing in the definition of “illicit sexual conduct,” just like I mentioned earlier this morning, this is another example of overlapping statutes.