What exactly is Sedition?

As the first indictments are coming down from the riot that occurred at the Capitol last week, the allegation of sedition has been referenced several times. Since it’s not a statute that is prosecuted very frequently, I thought it worth considering the legal definition. Federal Law defines “Seditious Conspiracy” under 18 U.S. Code § 2384 as “…two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof…” It’s a felony that carries a fine or a prison sentence up to 20 years. It certainly seems that those rioters who occupied the Capitol building would be subject to prosecution under this statute.

First, it requires that two or more people be conspiring, and there were hundreds working together to breech the Capitol building, so that element is satisfied. While it mentions putting down the government, which is arguable, it also includes other ways to break the law including levying war, oppose the authority of, hinder the execution of law or most notably, “by force to seize, take, or possess any property of the United States”. That certainly seems to be an apt description of the mass of people who breeched the Capitol building and occupied it. The Federal government certainly could make a case that the activity was seditious, especially if more information were to come out about conspiratorial actions in the lead up to the riot.

Some have suggested the President could also be criminally liable for the inflammatory language he used preceding the riot. It would be difficult for him to face criminal liability, though he not need be present to have conspired to commit a crime. Conspiracy charges, such as Seditious Conspiracy, punish not only the direct actors, but those that conspire with them. However, since the President did not directly call for invading the building, it would be difficult to make a case without something more. If things come to light over time that suggests there were actions or conversations with the President and those intending violence at the Capitol, he could face criminal liability, but his bigger concern is probably being held civilly liable.

The first indictments related to the riot have been issued, and sedition charges have not been filed against those individuals, including one who did enter the building. Mark Leffingwell does face a felony charge under the Federal Anti-Riot act for allegedly interfering with an officer during a civil disorder. He faces several other charges, including assault on law enforcement. The other individual is Lonnie Coffman, who was caught later in the day with weapons and a bunch of Molotov cocktails in his vehicle: he also faces felony charges. Dozens more have been arrested, and at least one law enforcement officer died, so many more charges are slated to come down, including homicide for anyone responsible for the officers death.

*UPDATE The FBI indicated this afternoon they are considering an array of charges, including possible sedition charges.

Some People are Taking #COVID Precautions Very Seriously

With coronavirus cases on the rise, and Florida courts trying to safely reopen, there is a tension. That’s in particular contrast when it means zealously advocating for your clients. Miami attorney Sam Rabin had a sentencing hearing. According to fellow attorney-blogger David Oscar Markus, he had the option of attending by Zoom, but did not want to have his client appear without being able to be there for him. He made it to court, in full protective gear, to represent his client. Great work!

Sam Rabin is a legend. This is what he wore to federal court today in SDFLA. pic.twitter.com/EzbE2PZVWh

— David Oscar Markus (@domarkus) June 30, 2020

Markus also points out that an elderly Defendant awaiting trial just passed away from #covid while awaiting trial in federal custody in Miami. He was facing charges for a non-violent drug offense.

Ivan Gonzalez Ramirez, 68, was awaiting trial for a drug offense at a federal prison in Miami. He had long-term, pre-existing medical conditions. The BOP just announced that he died on Sunday from COVID-19.

Read that again: Awaiting trial for a drug offense. Now he’s dead. pic.twitter.com/O1oAA0wHn5

— Vanita Gupta (@vanitaguptaCR) June 30, 2020

Jail Mistreatment Suit from Charlotte County is Underway

The civil rights trial of a jail mistreatment suit from Charlotte County got started in Federal Court in Fort Myers, today. Amy Bennett Williams is covering the case for the News-Press.

Former Deputy Sentenced to Six Years in Prison for Robbery

Michael Ronga

Former Lee County Deputy Michael Ronga was sentenced this week to six years in Federal prison (he also worked for Fort Myers PD, at an earlier time). He was convicted at trial a few weeks ago for beating an robbing man he had given a ride while he was on duty in his patrol vehicle. Prosecutors pushed for 10 years, which was in line with sentencing guidelines, though the court opted to go below the guideline sentence and he was only given the six years. His attorneys argued for home confinement. The sentence was surprisingly forgiving, in light of the breach of trust to the community for it to happen by an on-duty officer.

Federal Judge Helps Reduce a Sentence he was Forced to Impose

I’ve complained about the inequities of mandatory sentences, and the problems inherent in removing all judicial discretion from sentencing. When you impose blanket rules, you will end up with unjust results. The Federal system has already moved to roll back some of the mandatory sentences that have been imposed on drug offenses. Now, one federal judge took it upon himself to push the prosecutor’s office to drop some charges to allow a re-sentencing of an offender the judge had been forced to impose an extremely harsh sentence. Some might not have any sympathy for Francois Holloway, as he was undoubtedly guilty of the crimes, but the required stacking provisions meant he got sentences several times longer than his codefendants, and he wasn’t even the one carrying the firearm.

Mandatory sentences that eliminate discretion spawn cases like Marissa Alexander, who may be facing 60 years for firing a warning shot that harmed nobody. Very rarely to violent offenders have sympathetic stories with a chance of swaying the legislature, but hers is the rare exception that may affect positive change. There are not many judges like Judge Gleeson, who took it on his own initiative to push for a just sentence. Gleeson criticized the system further, blaming prosecutorial abuse for a “significant number of federal inmates who are serving grotesquely severe sentences.” I counter that the prosecutors are not abusing their power, merely exercising the power granted to them through harsh sentencing schemes. The legislators have told them, both on the federal level and in states like Florida, that they want harsh sentences: it’s literally mandated by law. Those draconian rules should be the ultimate focus of our concern: they merely provide the framework under which the criminal justice system operates.

Also, the buildup in lengthy incarceration is wildly expensive and taxing on our system. Ironically, crime rates have been dropping just as incarceration rates are finally coming down. Harsh sentences are probably not the most effective crime deterrent, and certainly not the most cost effective.

NBC-2 to do a Story Tonight on Sentence Reform

• NBC-2 to do a story on a man who got 60 years for possession, according to the teaser

Well, I guess the story is on sentence reform: it’s about a man who was apparently arrested for possession of a half-an-ounce of cocaine and who was then sentenced to 60 years incarceration. The NBC teaser doesn’t give much in the way of details: what were the aggravating factors, was it a state or federal case? I expect it must have been federal charges, because state charges would not allow that great of a sentence for such a small amount. Even if it was possession with intent to sell, that wouldn’t be sufficient to warrant a 60 year sentence without other charges in Florida state court.

The teaser talks about the war on drugs, and shows a clip of President Clinton talking tough, but it also shows a clip of Governor Scott, so I don’t know if the situation deals with federal or state charges. While the state does have some severe sanctions: minimum mandatory sentences for an ounce or more of cocaine, for instance, federal laws are generally more harsh. The federal government has actually looked to recede from some of their overly-harsh, drug war-era initiatives, including the Fair Sentencing Act, which reduced disproportionate sentences for cocaine offenses that involved crack cocaine. Even Florida, which has an extremely harsh sentencing structure, is considering some exceptions to its sentencing policy.

Hopefully I’ll have time to do a follow up post after the story! It’s on tonight, around 6 pm: http://youtu.be/WXCB0VlDHWE

 

Warrants Required for GPS Tracking : 3rd Circuit

• Major Appellate Court Ruling: the 3rd Circuit Rules that a warrant is required to place a GPS tracking device on a vehicle

In 2012, the Supreme Court ruled in United States v. Jones, (132 S.Ct. 945, 2012,) that placing a GPS tracking device on a vehicle does constitute a search. The Supreme Court declined to rule whether such a search required a warrant, or if such searches are therefore unreasonable under the Constitution. The lower courts had punted on the issue since then, allowing good faith exceptions for GPS devices placed prior to the Jones ruling. This week, the 3rd Circuit issued a ruling that declared that not only does the placement of a GPS tracking device on someone’s vehicle constitute a search, such searches do require a warrant. United States v. Harry Katzin, et. al. (Docket No. 12-2548, Fed. 3rd Cir, 2013). [Case text included in linked Wired story.]

This does not prevent the government from using GPS tracking devices, it merely requires that the Constitutional warrant requirement be adhered to before they do so. The agents and prosecutors in the Katzin case knew about the Jones ruling, but did not bother to even ask for a warrant, even though they probably could have gotten one. Now, the evidence obtained as a result of the search will be excluded from any future trial, due to the government’s willful disregard for the Defendants’ Constitutional rights. This case will likely set a strong precedent, as it is in line with recent Supreme Court holdings.

In Florida, the Jones case has been followed in appellate cases refuting warrantless searches of cell phones [Smallwood v. State, 113 So.3d 724 (Fla. 2013)], and limiting officers who come onto property without warrants for investigatory purposes [Powell v. State, 120 So.3d 577 (Fla. 1st DCA 2013)].

via drudge: http://www.wired.com/threatlevel/2013/10/warrant-required-gps-trackers/

Manning’s Transgender Case : BU Law Represents

Chelsea Manning, formerly known as Bradley Manning, has announced that she is transgender, and intends to begin the sex reassignment process to become a woman. USA Today did a thorough and thoughtful article on the issue, and quoted Neal Minahan, my friend from Boston University School of Law.

I’m proud of my classmates, in addition to Mr. Minahan’s work on this important and delicate issue, Jenn Rolnick Borchetta worked on the NYPD Stop and Frisk case, helping prove that NYC police have been systematically violating people’s rights for years. It’s great to see my colleagues on the right side of good things happening in the law, and great for the profile of BU Law! BU Law, as you may know, prides itself on being on of the first law schools to admit students regardless of race or gender.

Feds Prosecute Telephone Prank

In what is perhaps the stupidest use of limited Federal resources, Federal charges have been filed against two men for a phone prank that was laughed about all over the internet, after it got picked up by Deadspin.com. Now, each of the men are facing up to five years in prison on federal felony charges.

Now, it would be one thing if trade secrets ended up causing harm to either of their businesses. But that didn’t happen… it was a harmless prank that may have caused some embarrassment to the victims of the prank, but they didn’t have to make a federal case of out it. A felony in fact. With all the issues going on in the Justice Department right now, you wouldn’t think that prank phone calls would be a high priority.

Frequently, there is a strong defense to charges relating to phone calls, because it is difficult to prove who actually made the calls. Even knowing who owns the phone is insufficient to prove the guilt of whoever actually made the call. Things may be more difficult for the gentlemen in this case, as they posted their exploits on the internet.

However, I can’t get past the question of whether it makes sense to prosecute this case. We are paying for it, it’s our tax dollars that pay the prosecutor who filed on it, and in turn, the judge and all the courtroom personnel that will be involved in the case as it moves through the system. That’s a lot of our money to punish a little prank- and as a felony no less (several states make it a misdemeanor). Lucky for these guys, they didn’t pat anyone on the butt…

Marcelino Gonzalez is Still Being Illegally Imprisoned

Marcelino Gonzalez DOC photo

We discussed the back and forth case of Marcelino Gonzalez, who was accidentally released early, and then illegally sent back to do the prison sentence that had already expired. He is still sitting in prison, and his incarceration is against the law. His federal petition for habeas corpus is still pending, Case 2:13-cv-00267-JES-DNF Gonzalez v. State Of Florida.