Marquette University Law School Faculty Blog

Seventh Circuit Narrows Reach of Armed Career Criminal Act

Post author:Michael M. O'Hear
Post published:September 15, 2008
Post category:Criminal Law & Process Federal Criminal Law & Process Public Seventh Circuit

On Friday, in United States v. Smith, the Seventh Circuit held that a conviction in Indiana for criminal recklessness could not be used as a predicate offense for a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act. Ordinarily, felons found in possession of a firearm face a maximum sentence of ten years. However, the ACCA raises the minimum to fifteen years for felons who have at least three prior convictions for “a violent felony or a serious drug offense.” The Seventh Circuit’s decision to vacate Smith’s ACCA sentence last week illustrates the importance of Begay v. United States, in which the Supreme Court held that DUI does not count as a “violent felony” for ACCA purposes. Prior to April, when Begay was decided, Seventh Circuit precedent indicated that a felony conviction for criminal recklessness counted; now, in light of Begay, the Seventh Circuit has adopted a new approach.

Court Finds First Amendment Right to Forge E-Mail Headers

Post author:Bruce E. Boyden
Post published:September 14, 2008
Post category:Computer Law

On Friday, the Virginia Supreme Court handed down its revised decision in Jaynes v. Commonwealth, an appeal of a criminal conviction under Virginia’s anti-spam statute. The defendant, Jeremy Jaynes, was at the time of his arrest one of the most prolific spammers in the world, sending at least 10 million e-mails a day using 16 high-speed data lines, according to prosecutors. He used his e-mails to sell dubious software products, raking in $400,000 to $750,000 per month.

Jaynes argued that Virginia’s anti-spam statute violated the First Amendment. The statute prohibits sending “unsolicited bulk electronic mail” after having intentionally falsified the e-mail header information, i.e., the information indicating the source of the e-mail. That’s a little different than your average spam statute, which typically prohibits only “unsolicited commercial e-mail.” According to the unanimous Virginia Supreme Court (four members of which switched their votes on rehearing), prohibiting non-commercial bulk e-mailers from forging the header information violates the First Amendment right to speak anonymously.

Privacy Interests in Extremis

Post author:Michael K. McChrystal
Post published:September 13, 2008
Post category:Criminal Law & Process Privacy Rights Wisconsin Court System Wisconsin Criminal Law & Process

In a fascinating case decided this week, the Wisconsin Court of Appeals affirmed the suppression of a video recording apparently showing a husband having sexual intercourse with his wife, a stroke victim who was unconscious and lived in a nursing home. See State v. Johnson (Appeal No. 2007AP1485-CR, 9/11/2008). The husband was charged with second degree sexual assault, a class C felony, which can result in imprisonment up to 40 years. The offense occurs when a defendant “has sexual contact or sexual intercourse with a person who the defendant knows is unconscious.” Wis. Stat. § 940.225(2)(d). The statute further provides that “A defendant shall not be presumed to be incapable of violating this section because of marriage to the complainant.” Wis. Stat. § 940.225(6).