Oct 7, 2021 | Sixth Circuit
UNITED STATES v. HERBERT WILFRED NIXON
The 6th U.S. Circuit Court of Appeals recently decided to uphold the five-year sentence of a man who sent threatening letters to a federal judge in Nashville – including one that contained a white powdery substance which was later found to be a harmless artificial sweetener.
Herbert Wilfred Nixon sent the letters to Senior Judge Thomas Wiseman in 2002 after Wiseman sentenced him to three years in prison for credit card fraud. “The unsigned letters demanded money and threatened the judge’s life,” according to the 6th Circuit opinion written by Judge Raymond M. Kethledge.
Nixon pleaded guilty to making a false threat involving a biological weapon, in violation of 18 U.S.C. § 1038(a)(1).. While federal sentencing guidelines only called for a sentence of 30 to 37 months, U.S. District Judge William J. Haynes Jr. decided to send a strong message and sentenced Nixon to 60 months, the statutory maximum. Judge Haynes also ordered that Nixon have no contact with any member of the postal service during his three years of supervised release.
Nixon argued that the sentence was unreasonable. However, the three-judge appellate panel upheld it, citing factors including Nixon’s criminal history and the fact that his hoax “required the government to spend resources responding to a bio-hazard threat and were meant to terrorize a district judge and his staff.”
The Court wrote that just because another appellate court might have imposed a different sentence does not mean reversal is appropriate. The Court found that given the circumstances of Nixon’s offense, his criminal history, and his refusal to be deterred by a prior 36-month sentence, the district court’s sentence of 60 months was not an abuse of discretion.
Nixon also challenged the supervised release condition barring him from contact with any member of the postal service. The Court disagreed again, saying that Nixon used the postal service to commit his crimes, so the supervised release condition was reasonably related to the nature and circumstances of his offense and thus reasonable. The panel found that condition was even more palatable given that Nixon was only prohibited from contacting members of the postal service; he was not barred from using the service altogether.
For the full opinion, click here.
Oct 7, 2021 | Business Law
The major cell phone providers, including AT&T, Verizon and Sprint, may be required to keep information about their customers’ text messages for at least two years according to a proposal that various law enforcement agencies submitted to Congress.
A group of different police organizations asked legislators to require wireless companies to retain information, warning that a lack of federal requirements leaves a major hole in the ability of law enforcement agencies to launch proper investigations. The move was designed to include text message retention in an upcoming overhaul of the 1986 Electronic Communications Privacy Act, a privacy law meant to reflect the new realities of the modern technological era.
As text message usage has exploded recently so have the instances of their use in criminal investigations. They have been used as evidence in robberies, drug dealing and financial fraud cases. One great example occurred in 2009 when SkyTel turned over a whopping 626,638 text messages in Michigan.
Currently, the approaches used by the various companies are all over the place. Verizon and some others retain their text messages only for a brief period of time. Others, including T-Mobile do not store the messages at all. A Justice Department document obtained by the ACLU found that in 2010, AT&T, T-Mobile, and Sprint did not store the contents of text messages. Verizon did for up to five days, a change from its earlier no-logs-at-all position, and Virgin Mobile kept them for 90 days. The carriers generally kept data like the phone numbers associated with the text for 90 days to 18 months; AT&T was an outlier, keeping it for as long as seven years, according to the chart.
The groups making the request include the Major Cities Chiefs Police Association, the National District Attorneys’ Association and the National Sheriffs’ Association. It has not yet been made clear by the groups whether they want the telecommunications companies to store the content of the text messages or only to hold on to data including the numbers used to send and receive the messages. No matter which approach is employed it will be a massive responsibility for the cell phone providers with some 2 trillion text messages sent in the U.S. last year, coming out to nearly 6 billion per day.
The problem with the request for retaining the text messages is that there is ultimately only one reason for companies to do such a thing: to keep databases of information on their customers so police officers can fish for evidence at their leisure.
Source: “Cops to Congress: We need logs of Americans’ text messages,” by Declan McCullagh, published at CNET.com.
Oct 4, 2021 | Fair Sentencing Act, Sixth Circuit
U.S. v. Hughes
In another confusing and unfortunate case involving the Fair Sentencing Act, the Sixth Circuit recently ruled against a man who had been convicted of possession with intent to distribute more than 50 grams of crack cocaine. The case of Albert Hughes shows how the FSA, which Congress designed to eliminate the racially motivated disparities between crack and powder cocaine drug crimes, has been applied haphazardly and is in serious need of clarification.
The case began back in 2009 when Hughes was originally given a mandatory minimum sentence of 10 years in prison for the crack offense and an additional five-year enhancement for possession of a firearm. For a variety of reasons Hughes’ case was overturned and subjected to resentencing several years later, a problem that led to the main issue of the case.
When Hughes was originally sentenced the FSA had not yet been passed. However, by the time he was resentenced in 2011, the FSA had been enacted. Hughes argued that because the new law had been enacted four months earlier, he should be sentenced according to the terms of the legislation. This would have a substantial impact on Hughes given that the new law included a five-year mandatory minimum for his crack possession charge as opposed to the original 10-year mandatory minimum.
The district court disagreed with Hughes and decided to sentence him to the 10-year mandatory minimum contained in the pre-FSA laws. The Court said that longstanding federal law is clear that a crime’s penalties are normally those on the books when the crime is committed.
Hughes then appealed the case to the Sixth Circuit, hoping to convince the Court to overturn the harsher sentencing in favor of the rules that were in place at the time he was sentenced in 2011. In an unusual twist, the government, which initially argued against Hughes’ request, actually switched its position and filed a brief supporting Hughes, saying that the Sixth Circuit should vacate the district court’s order and remand Hughes’ case for resentencing under the FSA. Rather than take this as an important signal to reconsider the case, the Sixth Circuit instead ordered a third party that had filed a brief supporting the district court’s opinion to argue the matter.
Unfortunately, the Sixth Circuit ultimately held that pre-FSA laws should apply to Hughes’ case. The Court found that the when a person is subject to resentencing, he or she must face those penalties that were in effect on the date of the previous sentencing. The Sixth Circuit panel said that it is not the Court’s job to correct the unjust sentencing scheme that existed prior to the passage of the FSA, but instead to follow the laws that were in place at the time a crime was committed.
To read the full opinion, click here.
Oct 1, 2021 | Business Law
Antitrust law
These are the laws designed to protect trade and commerce. The protection is aimed at monopolies, price discrimination, and price-fixing. The Antitrust Division of the Justice Department and the Federal Trade Commission are the agencies that investigate antitrust violations.
In 1890 Congress passed a federal statute, the Sherman Antitrust Act, the prohibits interference with the freely competitive interstate manufacturer and distribution of goods. This statute commonly referred to as the Sherman Act is the governing authority. Congress amended the act by the Clayton Act of 1914.
Another statute, Hart-Scott-Rodino Antitrust Improvement Act, passed in 1976 improves the Justice Department’s antitrust enforcement powers. This is the law that requires large companies to give the Federal Trade Commission and the Justice Department notice of intent to merge.
