When is a lie a federal crime?

By Lee Davis


Earlier this year the Supreme Court decided US v. Alvarez, a case that tests the limits upon which a community must accept contemptible conduct--in this case speech--from locally elected officials.

Xavier Alvarez is a brazen liar. But is he a criminal? As an elected official for the Three Valley Water District Board with headquarters in Claremont, California, he introduced himself at a meeting. Alvarez claimed he served 25 years in the Marine Corps and that he was wounded in combat--this is false. He boasted that he played professional hockey for the Detroit Red Wings and that he once had been married to a Mexican film starlet--these claims are equally untrue. But the whopper that got him indicted in federal court was the statement that he received the Congressional Medal of Honor. By making that statement he violated the Stolen Valor Act by falsely claiming to have received the honor. By all accounts Alvarez was making a pathetic attempt to draw attention to himself to those assembled at the municipal meeting.

The Stolen Valor Act states that whoever falsely represents himself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States ... shall be fined under this title, imprisoned not more than six months, or both.

Faced with the obvious, his own statements, Alvarez pled guilty in federal court but he reserved the right to appeal his conviction. The appeal eventually found its way to the Supreme Court.

The question before the court was whether the Stolen Valor Act violated the Free Speech Clause of the First Amendment? One circuit court had already found the act constitutional and another found it to be unconstitutional. The Supreme Court accepted the case to address the split authority on this issue.

In June of this year, the Supreme Court found the Stolen Valor Act unconstitutional. Justice Kennedy writing for the majority in a 6-3 decision stated that content based restrictions like the Stolen Valor Act are subject to strict scrutiny to see if the law violates the First Amendment. To be sure, some false statements--false statements of defamation or false statements to federal law enforcement agents are crimes. True threats that present a grave and imminent danger are also crimes. But false statements alone do not present the type of threat that warrants intrusion into the first amendment. False statements of the kind made by Alvarez create no harm--so the court found. Obnoxious behavior and reprehensible conduct, yes, but not a crime. The remedy to false statements is true statements and the Court noted that Alvarez had been roundly criticized and rebuked once his claims we found to be untrue.

In the words of Justice Kennedy: "The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find respondent's statements anything but contemptible, his right to make those statements is protected by the Constitution's guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment."


Here is the full opinion:U.S. v. Alvarez, 132 S.Ct. 2537 (U.S.,2012)

SUPREME COURT DECISIONS CHANGE RULES FOR DETERMINING WHEN CONVICTIONS FOR MULTIPLE CRIMES ARE PERMITTED

March 9, 2012

Nashville – In three unanimous decisions, the Tennessee Supreme Court significantly changed the tests and procedures for determining when multiple convictions are permissible under the state and federal constitutions.

In State v. Watkins and State v. Cross, the state confronted the issue of whether multiple convictions under different statutes violate the state constitutional prohibition against double jeopardy. After reviewing historical developments, the Court concluded that the time has come to abandon the test previously announced by the Court in State v. Denton and adopt the same elements test announced by the U.S. Supreme Court in Blockburger v. United States. The Blockburger test is already used by federal courts and many state courts. It requires courts to focus on the elements of the crimes and the legislative intent when determining whether multiple convictions violate double jeopardy. Adopting the Blockburger test will allow Tennessee courts to decide double jeopardy claims in a more straightforward manner.

The Court emphasized that there cannot be a double jeopardy violation unless the convictions arise from the same act or transaction. Similarly, the Court pointed out that if the Legislature expressly states that multiple convictions are permissible or if each offense includes a different element, courts will presume the Legislature intended to permit multiple punishments.

In State v. White, the Supreme Court announced changes in cases involving charges of kidnapping and an accompanying felony. The Court concluded that a separate due process test is no longer necessary for determining whether convictions for kidnapping and an accompanying felony may be upheld. Instead, a properly instructed jury must decide whether a defendant who detains a victim during a crime, such as rape or robbery, can be convicted of kidnapping in addition to the other crime. When the charges result in a kidnapping conviction, the trial and appellate courts must uphold the conviction if the evidence is legally sufficient. The opinion overrules the approach taken in State v. Anthony and refined in State v. Dixon by requiring a jury to determine if the evidence is sufficient to support a conviction for kidnapping and another offense. The opinion also overrules State v. Cozart, in which the Court concluded that judges, as opposed to juries, were required to determine whether a separate kidnapping conviction violated constitutional standards.

In today’s decision, the Court set out temporary jury instructions and invited the Tennessee Pattern Jury Instruction Committee to develop permanent guidelines for future cases. The Court also pointed out that its decision does not create a new rule of constitutional law and, therefore, does not require retroactive application.

1. State v. Watkins, opinion authored by Chief Justice Cornelia A. Clark
2. State v. Cross, opinion authored by Justice William C. Koch, Jr.
3. State v. White, opinion authored by Justice Gary R. Wade

The above was  released by the Tennessee Supreme Court and the content of this post is a verbatim statement from the court.  I believe it is fair to quote from each case and this release as authority from the Court.

U.S. v. Cory Kent Traxler: Sentencing Guidelines Part II

• UNITED STATES V. CORY KENT TRAXLER

In another case concerning Sentencing Guidelines before the 6^th Circuit Court of Appeals, Cory Kent Traxler pled guilty to being a felon in possession of a firearm. A probation officer concluded that Traxler’s base offense level was a 33 due to his history as a career criminal. Three levels were subtracted due to Traxler’s having taken responsibility for his crimes resulting in a total offense level of 30.

Based on his offense level and a criminal history category of V, Traxler’s guideline range was 151 to 188 months of in prison. Traxler, however, was subject to a mandatory minimum sentence of 180 months, making his actual range between 180 and 188 months of imprisonment.

The District Court granted the government’s motion to depart downward from the statutory minimum based on Traxler’s substantial assistance and the court sentenced Traxler to 60 months of incarceration followed by three years of supervised release.

On appeal the government now argues that the district court erred by considering factors other than Traxler’s substantial assistance when deciding to depart downward from the sentencing guidelines.

The 6^th Circuit wrote that a district court’s decision to depart downward from a statutory minimum sentence “must be based solely upon the substantial assistance rendered by the defendant.” Before there can be a remand for re-sentencing there must be an indication of error in the record. Such an error exists in this case. The worry, according to the 6^th Circuit, is that the District Court based its decision not solely on the motion by the government, but also on a motion by Traxler asking for a downward variance in his sentence. The District Court was not clear regarding exactly what criteria it weighed in making its decision and it appears that the district court relied on non-substantial assistance factors when making its decision.

The 6^th Circuit ultimately held that because the District Court failed to adequately explain its decision, the sentence was deemed to be procedurally unreasonable and the case was remanded for re-sentencing.

Earlier:

Supreme Court Says Death Row Inmate Gets Second Chance After Attorneys’ Abandonment

Supreme Court Throws Out Murder Conviction After Prosecutors Fail to Turn Over Damaging Confession

Memphis Criminal Court Judge John Fowlkes appointed to Federal Judgeship

Memphis Criminal Court Judge John Fowlkes was appointed yesterday by President Obama to the Federal Bench for Western District, Tennessee.  The Commercial Appeal reports,

Fowlkes, 60, would take the post left vacant when former U.S. Dist. Judge Bernice B. Donald was sworn in as a judge on the U.S. Court of Appeals for the Sixth Circuit on Oct. 29.
“It is truly an honor for the President to nominate me for the position,” said Fowlkes moments before the official announcement came from the White House. “It’s a position I’ve wanted to fill for a number of years and I look forward to the challenges that the position brings. Of course, the process still has a ways to go. 

“In the meantime, I’m still the judge of Division 6 of Criminal Court,” he said. “My responsibilities don’t stop.”

Fowlkes has been a Criminal Court judge since 2007. Immediately prior to that, he served as the chief administrative officer for Shelby County government under then-County Mayor A C Wharton. Before that, he served as an assistant U.S. attorney from 1989 to 2002, where he prosecuted corruption, money laundering, narcotics and gang-related defendants, among others. From 1979 to 1989, he was an assistant district attorney general in the Shelby County District Attorney General’s Office.