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    Criminal Law Blog

    Suzanne L. Bailey

    Recent Posts

    CRIMINAL LAW:  The Extent of Judicial Power in Sentencing Pursuant to a Federal Plea Agreement

    Posted by Suzanne L. Bailey on Fri, Dec 15, 2023 @ 15:12 PM

    CRIMINAL LAW:  The Extent of Judicial Power in Sentencing Pursuant to a Federal Plea Agreement 

    Suzanne Bailey—Senior Attorney

           A recent decision from the U.S. Court of Appeals for the Fourth Circuit, United States v. Toebbe, 85 F.4th 190 (4th Cir. 2023), illustrates both the binding nature of plea agreements entered into pursuant to Rule 11 of the Federal Rules of Criminal Procedure and the ultimate authority of the judge in sentencing. Diana Toebbe, a high school humanities teacher with a Ph.D., and her husband, Jonathan Toebbe, a nuclear engineer assigned to the Reactor Engineering Division of the Naval Nuclear Propulsion program and possessing both an active Top Secret security clearance through the Department of Defense and an active “Q clearance” through the Department of Energy, decided to supplement their income by selling Restricted Data of the U.S. Navy relating to Virginia-class-nuclear-powered submarines to a foreign government. Unfortunately for the Toebbes, the foreign government alerted the FBI to the couple’s proposed scheme, and all of the “dead drops” of information Jonathan thought he was making to the foreign government—with Diana acting as look-out—were actually left for an FBI undercover investigation team. Both Toebbes were indicted and charged with “one count of conspiracy to communicate Restricted Data, in violation of 42 U.S.C. § 2274(a), and two counts of aiding and abetting the communication of Restricted Data, in violation of § 2274(a) and 18 U.S.C. § 2," 2023 U.S. App. LEXIS 28366, at *7-8, and both faced a potential sentence of life in prison.

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    Second Circuit Upholds Restrictions on Removing "Premises Licensed" Handguns from Premises

    Posted by Suzanne L. Bailey on Wed, Jul 18, 2018 @ 11:07 AM

    Suzanne BaileySenior Attorney, National Legal Research Group


    Coming in the midst of a national discussion on reasonable limits on the Second Amendment right to bear arms prompted by high school students’ reaction to the Parkland, Florida, school shooting, a decision from the Second Circuit Court of Appeals upholding a New York City regulation restricting the ability of individuals with a "premises license" handgun permit to remove the gun from the specified premises has special resonance. In New York State Rifle & Pistol Association, Inc. v. City of New York, 883 F.3d 45 (2d Cir. 2018), a firearms owners' association and individual holders of premises handgun licenses sued the City of New York and the New York City Police Department‑License Division (collectively "City"), the local office authorized by the New York State Penal Code to issue handgun permits in the City, challenging New York City Rule 5‑23(a) on the grounds that it violates the Second Amendment, the dormant Commerce Clause, the fundamental right to travel, and the First Amendment right to expressive association. The district court granted the City's motion for summary judgment, upholding the regulation on all grounds, and the Second Circuit affirmed.

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    Topics: criminal, second amendment, school shooting, reasonable limits

    No Right to Use Forfeited Substitute Assets to Pay for Appeal Counsel

    Posted by Suzanne L. Bailey on Mon, Dec 18, 2017 @ 10:12 AM

    Suzanne Bailey, Senior Attorney, National Legal Research Group

                A recent decision from the Fourth Circuit Court of Appeals is a reminder of both the strength of federal forfeiture laws and the limits on the right to appellate counsel. On a practical level, it illustrates the danger of assuming that assets that might be subject to postconviction forfeiture will be available to pay for an appeal.

                Following his convictions for a host of drug, conspiracy, and money laundering offenses, and following the court's order for forfeiture in the amount of $51.3 million, the defendant in United States v. Marshall, 872 F.3d 213 (4th Cir. 2017), made a motion in the district court to release $59,000 in the defendant's credit union account in order to pay for his appeal. The motion correctly noted that the order of forfeiture did not specifically mention the $59,000 credit union assets. Although the Government previously had filed a bill of particulars providing notice that it intended to seek the forfeiture of the $59,000 in the credit union account, the bill did not indicate whether the Government classified the credit union funds as assets derived from the crimes pursuant to 21 U.S.C. § 853(a) or substitute assets pursuant to 21 U.S.C. § 853(p), that is, assets that are a substitute for assets derived from the crime that cannot be located due to an act or omission of the defendant. Three and one-half weeks later, the Government filed—and the district court granted—a motion for a second order of forfeiture, specifically requesting the forfeiture of the funds in the credit union account and classifying them as substitute assets. The defendant then brought his motion to use the "untainted" substitute assets to pay for his appeal in the Fourth Circuit Court of Appeals, which stayed appellate proceedings while it decided the motion. The court ultimately denied his motion.

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    Topics: criminal, substitute assets, payment for appeal, forfeited assets

    CRIMINAL LAW: Due Process Demands Return of Court Costs, Fees, and Restitution

    Posted by Suzanne L. Bailey on Thu, Jul 20, 2017 @ 11:07 AM

    Suzanne Bailey, Senior Attorney, National Legal Research Group

          Following the exhilaration accompanying a reversal of a criminal conviction, the former defendant must begin efforts to mitigate the damage, not the least of which may be repairing the financial harm of participating in the criminal justice system. In a seven to one decision (Justice Gorsuch did not participate), the U.S. Supreme Court addressed the Colorado statutory scheme for the refund of costs, fees, and restitution paid pursuant to the invalid conviction and concluded that the Compensation for Certain Exonerated Persons Act (Exoneration Act), Colo. Rev. Stat. §§ 13-65-101 to 13-65-103 (2016), violated due process by requiring defendants whose convictions have been reversed or vacated to prove their innocence by clear and convincing evidence in order to obtain a refund.  Nelson v. Colorado, 137 S. Ct. 1249, 197 L. Ed. 2d 611 (2017).  

          There were two petitioners in Nelson:  (1) Shannon Nelson sought a refund of $702.10 withheld from her inmate account with the Colorado Department of Corrections toward an assessment of $8,192.50 in court costs, fees, and restitution following a reversal of her conviction for sexual and physical abuse of her four children and acquittal after retrial; and (2) Louis Alonzo Madden asked for a refund of $1,977.75 he paid toward assessed court costs, fees, and restitution totaling $4,413.00 after his conviction for patronizing a prostituted child was reversed on direct appeal, his conviction for attempted third-degree sexual assault by force was vacated on postconviction relief, and the State elected not to appeal or retry the case. Neither petitioner proceeded under the Exoneration Act.  The Colorado Supreme Court held that the Exoneration Act was the sole means of seeking a refund and, thus, the courts were without authority to refund the money paid.  Moreover, the Colorado court found no due process problem because the Act provided sufficient process to defendants seeking refunds. Justice Ginsberg, writing for the U.S. Supreme Court, disagreed.

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    Topics: criminal law, due process, refund of court costs, fees, and restitution

    IMMIGRATION LAW: Analyzing State Drug Paraphernalia Offense for Purposes of Removal Under INA

    Posted by Suzanne L. Bailey on Thu, Jul 9, 2015 @ 10:07 AM

    The Lawletter Vol 40 No 5

    Suzanne Bailey, Senior Attorney, National Legal Research Group

         Section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA") provides:

         Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.

    8 U.S.C. § 1227(a)(2)(B)(i).1 In Mellouli v. Lynch, 135 S. Ct. 1980 (2015), the U.S. Supreme Court held that INA section 237(a)(2)(B)(i) was not triggered by a Kansas state law drug paraphernalia conviction for concealing four orange tablets in a sock. The defendant acknowledged that the tablets were unprescribed Adderall, but the criminal complaint did not identify the substance as Adderall. In so holding, the Court reversed the judgment of the Eighth Circuit Court of Appeals, Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013), which had affirmed the decision of the Board of Immigration Appeals ("BIA") upholding the deportation order.

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    Topics: removal, immigration, The Lawletter Vol 40 No 5, controlled substance, drug paraphernalia, Suzanne Bailey, Mellouli v. Lynch, deportation

    CRIMINAL LAW: Prosecutorial Misconduct in Closing Argument

    Posted by Suzanne L. Bailey on Wed, Mar 25, 2015 @ 11:03 AM

    The Lawletter Vol 40 No 1

    Suzanne Bailey, Senior Attorney, National Legal Research Group

         A recent en banc decision from the Supreme Court of Washington serves as a reminder of the bedrock upon which our criminal justice system stands, that is, that every defendant is entitled to a presumption of innocence, which is overcome only when the State proves guilt beyond a reasonable doubt as determined by an impartial jury based on evidence presented at a fair trial. In State v. Walker, 341 P.3d 976 (Wash. 2015) (en banc), the defendant was charged as an accomplice to aggravated first-degree premeditated murder, first-degree felony murder, first-degree assault, first-degree robbery, first-degree solicitation to commit robbery, and first-degree conspiracy to commit robbery in connection with an armored truck robbery at the Walmart where the defendant's live-in girlfriend was employed. The defendant was convicted of all charges, and he subsequently appealed, claiming, inter alia, that he had been denied a fair trial due to prosecutorial misconduct in closing argument.

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    Topics: criminal, guilt beyond reasonable doubt, prosecutorial misconduct, presumption of innocence

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