Wednesday Writs: Schmuck v. United States


Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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17 Responses

  1. Avatar Em Carpenter says:

    Big thanks to Andrew for helping out with links this week, and for suggesting the case.Report

  2. Avatar PD Shaw says:

    WW4: Marijuana legalization in my state was accompanied by an automatic expungement provision for any conviction for possession of less than 30 grams, so long as there was not an accompanying charge of a “violent crime.” That caveat seems likely to prevent the automatic part of this to run smoothly, but the idea is that one shouldn’t need a lawyer in the normal situation.Report

    • Avatar Jaybird in reply to PD Shaw says:

      30 grams? How much is 30 grams?

      Oh, it’s an ounce.

      Huh. I was prepared to find out that it was a quarter. An ounce is not an ideal cutoff, but it’s 4 times larger than I thought it would be so… I guess I approve insofar as it’s better than I thought (but I still think it ought to go farther).

      (That said, anybody who had more than an ounce in 1993 was dealing.)Report

      • Avatar dragonfrog in reply to Jaybird says:

        That said, anybody who had more than an ounce in 1993 was dealing

        If not in fact then potentially in law – typically there was an amount of cannabis, above which the offence was defined as an “intent to distribute” one, with no evidence of such actual intent needed.

        If a person was growing at home for their personal use, they couldn’t realistically stay under the “intent to distribute” amount even though they had no such intent – a single healthy plant, even of a variety with a small compact plant form suited to indoor growing, will easily yield more than 30 grams. This is exacerbated by cops’ tendency to weigh not just bud, but the whole plant and sometimes even the potting soil it’s in, so someone with two plants and a likely yield at harvest under 100 grams, ends up getting charged with possessing ten or twenty kilos of cannabis.

        In Canada, the maximum one is allowed to possess in public is 30 grams. You can possess any amount, but if you’re buying at shops you’ll have to make multiple shopping trips if you want to have more than 30 grams on hand.Report

        • Avatar Jaybird in reply to dragonfrog says:

          Oh, I know all about the dirty tricks that cops use when weighing plants. I was talking about actual weed, though. If you had more than four quarters/eight eighths, you were dealing.

          (This isn’t necessarily on a plant, mind. I’m talking about bagged. Even with stems, seeds, and everything.)Report

          • Avatar dragonfrog in reply to Jaybird says:

            Sure, if you were carrying around over an ounce outside, you were probably dealing. If you had over an ounce in a pickle jar in the pantry, you might have been dealing or home growing.

            Which I think is the rationale behind Canada’s possession limit of 30 grams being specific to possession *in public* – since it’s now legal to either grow at home or buy from the stores, (which AFAIK sell grams and eighths (in excessive amounts of packaging material) but nothing larger) – but if you’re growing at home a harvest under 30 grams would be really disappointing.Report

      • Avatar PD Shaw in reply to Jaybird says:

        Hmmm, looking back at it i miswrote, the automatic expungement applies to any cannabis offense amounting regarding less than 30 grams (possession, manufacture, delivery, etc.) unless there was adult delivering to a minor.

        Illinois has a possession with intent offense, but it has to be based upon evidence of intent, not a presumption with certain quantities. I wrote “has” because the marijuana laws are still mostly on the books unchanged if the marijuana isn’t within the protection of the state monopoly.Report

  3. Avatar Mike Schilling says:

    Coincidentally, Schmuck v. United States will also be the title for the Trump impeachment trial.Report

  4. Avatar CJColucci says:

    I worked on a criminal bank fraud case in the mid-80’s in which I thought we had a defense to the mail/wire fraud claim. In that case, the fraud was completed and the funds taken in person. The only use of the mails and wires was to deposit the already fraudulently obtained funds into the crooked bank’s account. While I was working on it, Schmuck came down, making me feel like, well, a schmuck.Report

  5. Avatar Oscar Gordon says:

    WW5: One would think such a thing to be automatic upon conviction. I would hope it was at least suspended while he’s incarcerated.Report

  6. Avatar Marchmaine says:

    “This was not a surprising result; it is very common for the feds to use charges of mail fraud as a vehicle to prosecute offenders- one of the charges against Felicity Huffman in the college admissions scandal was conspiracy to commit mail fraud.”

    …bothers me philosophically.

    I assume the law also now accounts for, say, Email to Courier … where’ no Govt/Postal services were implicated in the act? I suppose we always have the Commerce Clause to fall back on (or is that the underlying basis of Mail Fraud?)?Report

  7. Avatar Michael Cain says:

    WW8: I mentioned this in the comments on Sam’s piece. A pair of Colorado state senators (one Republican, one Democrat) and the state House and Senate majority leaders have indicated a similar bill will be introduced in the upcoming session. The bill text was originally prepared during this year’s session, but “a variety of unrelated legislative dramas” kept it from being introduced in time to be considered.

    It’s not surprising that Colorado is taking a run at this. Some years back Jeremy Bloom, a local kid, was skiing professionally from an early age (freestyle national champion at age 15). At the time, top skiers including Bloom largely self-funded their training and travel through endorsements. Bloom was also good enough at football to get a scholarship offer from the University of Colorado. The NCAA ruled, and won in court, that Bloom had to give up the skiing-related work in order to maintain football eligibility. After two years Bloom went back to paid endorsements in order to fund training for the upcoming Olympics and the NCAA declared him permanently ineligible. A few years later, the NCAA changed its rule to allow players to earn money in sports other than the NCAA sports in which they participate. Or, in the special case of NCAA tennis players, athletes can accept prize money up to certain limits from tennis tournaments in which they play.Report

    • Avatar PD Shaw in reply to Michael Cain says:

      I believe a bipartisan group of Illinois legislators introduced a copycat bill of the California version this week (down to the same belated effective date to permit legal challenges to go forward) One of the points the lead sponsor mentioned was that once any state does this, there will be a competitive advantage for recruitment there on out. The slope gets pretty slippery if NCAA can’t impose a national standard.Report

  8. Avatar Kolohe says:

    Here’s a question for the finest legal minds of our time

    Is this-

    probably a DMCA violation if Nickelback and/or their publisher push the issue, and probably not Fair Use, as it’s basically a political advertisement?Report