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I ordinarily wouldn’t blog about an unpublished short opinion from a magistrate judge in the Northern District of Mississippi (even though great things do come from there), but I view this as the leading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.

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Books, Movies, and Lawyers Who Risk Becoming Heroes

 I want to thank Dean O’Hear for inviting me to serve as the second alumni blogger of the month.

 

The question of the month asks for a favorite movie or a novel about law practice. Claiming the right established by Professor Murray to tweak the question, I want to mention a movie from the 1960’s and a biography published in 2008.

The movie is A Man for All Seasons. It is based on the play by Robert Bolt. The movie won several academy awards, including best picture. It focuses on a critical point in the life of Sir Thomas More.

The book is Crossing Hitler, by Benjamin Carter Hett. It is published by Oxford University Press. The book’s subject is Hans Litten. Less well known than Thomas More, Litten practiced law in Germany during the last years of the Weimer Republic. 

Thomas More was a pillar of the 16th Century English society in which he lived. Hans Litten was an anti-establishment figure in pre-World War II Germany. Both are complex men, and both risked becoming heroes at least in part by being lawyers in societies undergoing transformational change.

More’s England is in the throes of theological and social upheaval influenced by a technological revolution brought about by the printing press. More must decide whether to support a king and government who in the name of reform seek to overthrow the old order, and who suppress or ignore rights grounded in the common law or the Magna Carta. More’s decision costs him his standing in society, his property, and eventually his life.

Litton’s Germany is attempting to create a democracy amid the ruins of a society prostrated by war and a punitive peace. Litten uses Germany’s legal procedures to expose what he believes are the excesses of the Weimer government, and the fallacy of the Nazi party’s attempt to portray itself as a peaceful, democratic party. He subpoenaes and cross-examines Adolf Hitler concerning the Nazi Party’s activities at a critical point in the party’s rise to power in Germany. This and other actions cost Litten his practice, his freedom, and eventually his life.

Recent technological and communications revolutions are reshaping our institutions. Today’s lawyers practice law in the midst of this transformation.  The stories of Thomas More and Hans Litten show us that we are not the first lawyers to practice law in such times. Whether we want to or not, lawyers have a role to play in the reshaping of institutions during times of change. In extreme cases, that role may require that lawyers risk becoming heroes.

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