"But I'm Just a White-Collar Criminal!"

Bill O’Reilly has his “no spin zone”, but you won’t find that here at LJY…welcome to THE SPIN ZONE!!!

Yesterday the Fifth Circuit Court of Appeals came down with a few new published decisions. We'll break them down here and see what kind of spin the State and the defense might put on them.

U.S. v. Coleman, No. 09-30545

In this case, Mr. Coleman was charged with being a felon in possession of a firearm in violation of 18 U.S.C. ' 922(g)(1). Mr. Coleman insisted that he should not be charged with this crime because the underlying felony he had been convicted for fell within an exception to the crime of felon in possession of a firearm.

Under 18 U.S.C. '921(a)(20)(A), a person convicted for an offense relating to the regulation of business practices is exempt from being prosecuted as a felon in possession of a firearm (the business practices exception) . Mr. Coleman’s underlying felony conviction was for conspiracy to pirate encrypted satellite signals and to infringe a copyright. Coleman argued that his underlying felony conviction was for an offense relating to the regulation of business practices. He also argued that the court should evaluate the conduct underlying this conviction to determine whether the predicate offense fell within the business practices exception.

The court ultimately said that while the case law was clear that the court shall not examine the facts underlying the charged crime, it will consider the violation of the law that is the target of the charged conspiracy.

In Mr. Coleman’s case, the violations of the law that that were the targets of his conspiracy were pirating encrypted satellite signals and infringing copyright. The court stated that in order for a violation of the law to fall within the business practices exception that violation of the law must contain the element of having an effect upon competition. In Mr. Coleman’s case, the court held that neither the pirating crime nor the copyright crime contained an element requiring the State to prove that there had been an effect upon competition. The court Affirmed Mr. Coleman’s conviction.

· State SPIN: Just because the offense you commit has something to do with business practices doesn’t mean you’re automatically exempted from the felon in possession of a firearm statute.

· Defense SPIN: For the offense of conspiracy, the court can’t just look to the elements of conspiracy to evaluate whether the offense is excepted or not. The court must look also at the elements of the target offense of the conspiracy.

This case provides a good example of a creative argument on behalf of the appellant. Mr. Coleman’s attorney was aware enough to key on the fact that Mr. Coleman’s underlying offense had elements of business practices and made a great argument in an attempt to persuade the court to look at the facts of the underlying offense. I think that had the court been willing to go as far as to look at the facts the of the case they might have gone along with Mr. Coleman

The next 5th Circuit case we'll look at is U.S. v. Davis....we'll spin that case next!!!  Stay tuned.

5th Circuit Reasoning Unchanged by Supreme Court Precedent Regarding Violent Felony Enhancement under the ACCA

Under the Armed Career Criminal Act (ACCA) (18 U.S.C. § 924(e)(1)), a person who violates federal felon-in-possession-of-a-firearm statute (18 U.S.C. § 922(g)) and who has three prior convictions of a “violent felony” or “serious drug offense” must be sentenced to no less than 15 years in prison.

The obvious question follows – What exactly is a “violent felony?”

ACCA provides that a violent felony is:

Any crime punishable by imprisonment for a term exceeding one year…that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. (emphasis added).

You’ll notice the ubiquitous residual clause there at the end. It was this catchall portion that the U.S. Court of Appeals for the 5th Circuit was recently called upon to examine (or reexamine). See United States v. Hughes, HERE.

David Earl Hughes was charged and convicted as being a felon-in-possession under § 922(g). Hughes also had three prior felony convictions (two of which he did not challenge as being “violent felonies”). His third prior felony, however, a violation of the federal escape statute, 18 U.S.C. § 751, he argued, was not a “violent felony” despite an explicit 5th Circuit holding to the contrary. See United States v. Ruiz, 180 F.3d 675 (5th Cir. 1999). Hughes pointed to two recent Supreme Court cases, which, he claimed, required that the court reevaluate its prior conclusion.

First, in United States v. Begay, 128 S.Ct. 1581 (2008), the Supreme Court limited the scope of the residual clause, explaining that:

only crimes similar to the enumerated offense qualified, not ‘every crime that presents a serious potential risk if physical injury to another.’

Hughes additionally emphasized the Court’s decision last term in Chambers v United States, 129 S.Ct. 687 (2009), wherein it held that the Illinois crime of failure to report to prison was not a violent felony.

Rejecting the Government’s argument that failure to report showed ‘the offender’s, special, strong aversion to penal custody’ as ‘beside the point,’ the Court reiterated that the core inquiry is ‘whether such an offender is significantly more likely than others to attach, or physically resist, an apprehender, thereby producing a serious potential risk of physical injury.’

So it there a real difference in failing to report and escape from custody? According to a panel of 5th Circuit judges, YES.

In upholding the trial court’s determination that Hughes’ felony conviction for escape was a “violent felony,” the 5th Circuit reasoned:

unlike failure to report, escape is typically committed in a purposeful manner, and when these escapes cause injuries, those injuries typically result from intentional action, not negligence of even recklessness.

The Court went on to state that the act of escape is “typically aggressive insofar as one who escapes prison is no doubt aware that armed law enforcement will seek him out, potentially ending in a violent confrontation.” No case-by-case inquiry needed – escape is a violent felony for the purposes of enhancement under ACCA. Period.