U.S. v. Leal-Felix, No. 09-50426 (11-1-10) (Goodwin with Rawlison; dissent by Bennett, D.J., N. D. Iowa).

What is a "citation"? Use of a legal precedent? A very fast horse? An award or commendation? A minor civil infraction? What about a reason to add two criminal points? The latter is the case here, where the 9th considers whether a citation for a traffic violation is akin to an arrest countable for criminal history under the guidelines. The citation was for a traffic violation on November 17, 1998. Defendant was sentenced on that and a subsequent one on November 19 to 180 days. If the citation is not an arrest, then the two violations are related under 4A1.2(a)(2). The defendant, facing sentencing under 8 U.S.C. 1326, would be in criminal history Category V and not VI. This issue has only been dealt with, surprisingly, by the 7th Circuit in U.S. v. Morgan, 354 F.3d 621 (7th Cir. 2003). Using the facile reasoning in Morgan, that the defendant there could have been taken to a stationhouse for a full custodial arrest, the 9th reasons that a traffic stop, leading to a citation, bear the hallmarks of an arrest. The person is not free to go. As such, under the guidelines, it should be intervening. Moreover, and disappointingly, the 9th reasons backwards, looking at the fact that he received imprisonment for the two traffic violations, and so were more than mere citations. The imprisonments did result in criminal history points (2) but one should not assume its nature given the related sentence. Dissenting, Judge Bennett takes the slight opinion to task, writing an 18-page dissent (with a table of contents) arguing that a "citation" does not mean an "arrest."

U.S. v. Lazarenko, No. 08-10185 (11-3-10) (Graber with Callahan and Bea). File this under "Primes Ministers, Ukraine, representation of." The defendant, the aforementioned former Ukrainian Prime Minister, was convicted on a slew of fraud counts (53), of which only a handful money-laundering and conspiracy to commit money laundering, survived appeal. This appeal concerns restitution, and the very odd stance of a co-conspirator saying he was a "victim." The so-called victim here, Peter Kiritchenko, benefitted from the defendant using his political power to crush Kiritchenko's business competitors. Kiritchenko though had to pay kick-backs to the defendant. These kick-backs, it was argued, made Kiritchenko a victim. The district court so found under the MVRA, 18 USC 3663A, and the VWPA, 18 USC 3663. The 9th looked askance at this, concluding there may be exceedingly rare situations where a co-conspirator is also a victim, but this was not one of them. As a general rule, a participant in a crime cannot get restitution. The acts of the so-called victim tainted him. The statutes do identify a victim as some who has been "harmed," but Congress surely did not intend for criminals to so profit. To be a co-conspirator and a victim, the victim has to have a minimal role, and at some point has to pass from being a participant to an object of criminal acts, such as in sex trafficking. See Sanga, 967 F.2d at 1334-35.