In the Supreme Court, ACCA Is Back-a

Recently, the Supreme Court has been taking a lot of interest in the Armed Career Criminal Act, which requires that a minimum fifteen-year prison term be imposed on certain defendants with three or more prior convictions for serious drug offenses or crimes of violence.  As I discussed here, the ACCA has proven to be an interpretive nightmare, with courts struggling for more than two decades now to decide exactly which prior convictions count as triggers for the mandatory minimum.  With several recent opinions and cert grants, the Supreme Court now seems intent on addressing some of the many circuit splits in the ACCA case law.

Of particular note last year was the Court’s decision in Begay v. United States, in which the Court held that DUI is not a “crime of violence.”  Now, following in Begay’s footsteps, the Court held today in Chambers v. United States (No. 06-11206) that failure to report to prison is not a crime of violence. 

Chambers does not purport to revise the analytical framework used in Begay, but I am struck by how much closer the Chambers opinion seems to be to Justice Scalia’s concurrence in Begay than to the majority opinion in the earlier case.  Has Scalia convinced a few of his colleagues to switch sides?

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Seventh Circuit Week in Review: “Abusive Sexual Conduct Involving a Minor” and a Driver’s License Revocation

The Seventh Circuit had two new opinions in criminal cases this past week.  In the first, United States v. Osborne (No. 08-1176), the court considered the scope of 18 U.S.C. §2252(b)(1), which imposes a fifteen-year mandatory minimum sentence on certain child pornography defendants who have a prior conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.”  Osborne, convicted of a qualifying pornography offense in federal court, had a prior conviction in Indiana state court for “fondling or touching” a person age fourteen or fifteen “with intent to arouse or . . . satisfy sexual desires.”  Thus, Osborne plainly had a prior conviction for sexual conduct involving a minor, but was it “abusive”?  The district court thought so, but the Seventh Circuit (per Chief Judge Easterbrook) rejected a broad interpretation of “abusive” that would result in all sexual conduct with a minor qualifying — such an approach would essentially write the word “abusive” out of the statute. 

Section 2252 does not define “abusive,” but other federal statutes define “abuse” for other purposes.  The court reasoned that such other statutes should be consulted to determine whether a prior state conviction counts as “abusive sexual conduct.” 

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A Reminder: You Can’t Subpoena Non-Party ISPs for Emails in Civil Suits

I ordinarily wouldn’t blog about an unpublished short opinion from a magistrate judge in the Northern District of Mississippi (even though great things do come from there), but I view this as the leading edge of a wave of such opinions. In J.T. Shannon Lumber Co. v. Gilco Lumber, Inc., 2008 U.S. Dist. LEXIS 104966 (N.D. Miss. Aug. 14, 2008), Magistrate Judge S. Allan Alexander quashed the plaintiff’s Rule 45 subpoenas on Microsoft, Google, and Yahoo, which sought the “entire contents” of the email accounts of three of the individual defendants, employees of Gilco.

In addition to the ridiculously overbroad nature of the requests (all of the emails in their personal accounts?), J.T. Shannon’s subpoenas ran up against the Stored Communications Act (SCA), Title II of the Electronic Communications Privacy Act. The SCA prohibits a non-party ISP from disclosing emails to litigants in a civil case without the consent of its subscriber. This law may seem counterintuitive to litigation attorneys, who are used to being able to subpoena whomever they want within the scope of the Federal Rules of Civil Procedure. But the SCA is not incredibly onerous; it just means you have to request that the party produce their own emails, not the ISP.

Continue ReadingA Reminder: You Can’t Subpoena Non-Party ISPs for Emails in Civil Suits