Split Decision Upholds Conviction for Hobbes Act Extortion and Federal-Program Bribery

In United States v. Sittenfeld, -- F.4th -- (6th Cir. 2025), the Court of Appeals upheld the conviction of Alexander "P.G." Sittenfeld for Hobbes Act extortion and federal-program bribery. Sittenfeld was a candidate for mayor of Cincinnati, running from his seat on the city council. He solicited donations to fund his campaign. One set of donations he solicited from a local developer, Chinedum Ndukwe, seeking create a mixed-use development project at 435 Elm Street in Downtown Cincinnati. The case proceeded to trial. A jury convicted Sittenfeld of counts 3 and 4 of the indictment for Hobbes Act extortion and federal-program bribery. Ndukwe became the target of a separate investigation into public corruption. The FBI then turned Ndukwe into a source used in this case. Through Ndukwe and other undercover agents, many conversations with Sittenfeld referencing the Elm Street property and campaign donations were recorded. The indictment specified one of the undercover agents as the payor of the alleged bribes. When it came time to charge the jury, the parties agreed on jury instructions that broadened the language of the charge to "another person" instead of the named agent.

Sittenfeld challenged his convictions on sufficiency of evidence and constructive amendment of the indictment grounds. The Court of Appeals rejected these challenges. 

Turning to McCormick v. United States, 500 U.S. 257 (1991), and Evans v. United States, 504 U.S. 255
(1992), the Court of Appeals evaluated the sufficiency of evidence supporting Sittenfeld's conviction. To support a conviction, the government must convince a jury beyond reasonable doubt that the elected official received campaign donations in return for an explicit promise or undertaking. An explicit promise need not be reduced to writing or discussed in exact terms expressing "if this then that." Rather, the quid pro quo can be proved by inference as long as an objective observe could surmise that an agreement exists and what the terms of that agreement require. See fn. 8.  The Court of Appeals found the evidence presented at trial supported the jury's finding of an explicit agreement.

Sittenfeld also challenged his conviction for constructive amendment of the indictment by the jury instructions. A constructive amendment is possible "where jury instructions differ from an indictment, even in the absence of varied evidence," such that the effect was to charge the jury on a "separate offense that was not listed in [the] indictment." United States v. Kuehne, 547 F.3d 667, 685 (6th Cir. 2008) (citing United States v. Combs, 369 F.3d 925 (6th Cir. 2004)). But if the instructions differ only in terms of the means for committing the same crime, a defendant must demonstrate prejudice by the jury instructions to prove constructive amendment of the indictment. 

Sittenfeld failed to preserve the issue of constructive amendment for review. The time to object and raise constructive amendment grounds was at the jury instruction conference, before agreeing to the langue the district court would use to instruct the jury. Raising the issue in a post-trial motion was too late. The agreement to the instruction's language did not prevent review under the invited error doctrine because the government also proposed the same language. The Court of Appeals felt this made both parties equally responsible for any potential error. 

The Court of Appeals found that the to-wit clause in Sittenfeld's indictment limited the charges of his conviction to the specific named undercover agent in that clause. The Court went on to state that the instructions were broadened, but no variance in evidence occurred. The Court of Appeals found that the government introduced evidence of up to three separate explicit agreements at trial that involved the named undercover agent in the to-wit clause. 

The ultimate question became whether it is plain error to allow broader jury instructions where the evidence introduced at trial points to multiple distinct corrupt counterparties or if this is a constructive amendment. Based on lack of precedent on this issue related to Hobbes Act extortion and bribery, the Court of Appeals held that no plain error occurred. 

Court Rejects Challenge ACCA Sentence Based on Challenge to Plea Agreement's Factual Basis

In United States v. Short, -- F.4th -- (6th Cir. 2025), the Court of Appeals upheld the district court's finding of guilty and sentencing the defendant under the Armed Career Criminal Act (ACCA). Short was indicted for being a felon in possession of a firearm. "The government then modified the indictment." Short, at page 2. The new indictment included allegations that on four separate occasions Short committed four separate crimes of violence.

 Short challenged his sentence under ACCA by arguing there was no factual basis to accept his plea. His argument relied on the joint factual basis presented to the district court. The joint factual basis did not mention any of his prior convictions for crimes of violence. However, the district court informed Short at his change of plea hearing that he faced the ACCA enhancement to his sentence. Under the ACCA enhancement, Short faced 15 years to life. Without it, he faced a maximum sentence of 10 years. Short acknowledged the ACCA enhancement and stood by his plea. 

At the time of the sentence, Sixth Circuit precedent permitted district courts to find separate occasions on its own. See, e.g., United States v. Williams, 39 F.4th 342, 351 (6th Cir. 2022). Not long after Short was sentenced, the Supreme Court of the United States ruled that separate occasions must be found by a jury or admitted by the defendant. Erlinger v. United States, 602 U.S. 821, 834–35 (2024).

At sentencing, the district court had the new indictment alleging the four separate prior crimes of violence, the presentence investigation report chronicling Short's criminal history, and Short's acknowledgment of the enhanced penalties at the plea colloquy to form the factual basis.

The Court of Appeals applied United States v. McCreary–Redd, 475 F.3d 718, reiterating that the written statement of factual basis is not the only way to establish factual basis.

Court Upholds Denial of Motion to Reduce Sentence

 In United States v. Davis-Malone, -- F.4th -- (6th Cir. 2025), the Sixth Circuit upheld the district court's denial of the defendant's motion to reduce his sentence based on retroactive guidelines changes after Amendment 821 took effect. The district court rejected the defendant's petition, which was supported by the government, to reduce his sentence using a form order and including only 3 sentences explaining the decision. The same judge presided over the sentencing and the motion to reduce sentence.

After the defendant twice sold oxycodone pills to an undercover agent while on probation for credit card fraud, the government obtained a warrant to search the defendant's car. "Inside the car, they found a handgun that he had made fully automatic and loaded with 23 rounds. The agents also uncovered over 100 oxycodone pills and 200 grams of marijuana hidden in a secret compartment." Davis-Malone, at page 2. The defendant pleaded guilty to possessing a firearm as a felon. His recommended sentencing guideline range was calculated to be 70 to 87 months. The defendant received a sentence of only 60 months--10 months below the guideline range. 

Davis-Malone filed a motion to reduce his sentence pursuant to Amendment 821. After applying the amendment, his sentencing range would be 57 to 71 months. The district court rejected the joint recommendation to reduce Davis-Malone's sentence to 57 months because the original sentence falls within the low end of the new guideline range. 

The Court of Appeals upheld this decision, in part, because the same judge that sentenced Davis-Malone ruled on the motion to reduce sentence. The Court of Appeals found that the district court adequately explained its reasoning to impose a below-guidelines sentence initially, the district court--in particular the same judge as before--does not need to conduct an exhaustive analysis of the same sentencing factors as before. The Court of Appeals followed United States v. Brim, 661 F. App’x 879 (6th Cir. 2016), where the underlying facts are materially similar.

Gun & Drug Convictions Reversed Based on Erroneous Admission of Defendant’s Proffer Statements.

In United States v. Grogan, --- F.4th --- (6th Cir. 2025), the Sixth Circuit reversed the defendant’s convictions for possession with intent to distribute fentanyl, possession of a firearm in furtherance of a drug trafficking crime, and felon in possession of a firearm due to the erroneous admission of various inculpatory statements made by the defendant during a proffer.

Law enforcement suspected that Juan Grogan was involved in a shooting and a kidnapping. When they tried to arrest him, he fled. Agents impounded the car he had been driving and found a gun and fentanyl. He was arrested shortly thereafter and agreed to speak with investigators. He signed a proffer agreement allowing the government to use his statements to cross-examine him if he gave inconsistent testimony at trial.

The case ultimately went to trial and, against the advice of counsel, Mr. Grogan testified. Much of his testimony consisted of arguments about the insufficiency of the government’s evidence. He repeatedly invoked the Fifth Amendment during his cross-examination. Then, over defense objections, the government presented testimony about various inculpatory statements Mr. Grogan made during the proffer.

On appeal, the defense argued that the government could not introduce his proffers at trial because Mr. Grogan did not testify inconsistently or present evidence or arguments that contradicted his proffer. The Sixth Circuit held that Mr. Grogan’s invocation of the Fifth Amendment was not an inconsistent statement as contemplated by the proffer agreement, observing that no inferences can be legitimately drawn from invoking the Fifth Amendment and that “a defendant refusal to testify has no factual content that could contradict a purportedly different factual statement.”

The government argued that, questioning the credibility of government witnesses during his trial testimony, Mr. Grogan contradicted his earlier proffer statements where he admitted having a gun and selling drugs and that the inconsistent proffer statements were therefore admissible under the proffer agreement. The Sixth Circuit held that questioning whether the government can prove that you did something doesn’t amount to a denial that you did it and concluded the admission of all but one of the proffer statements was error.

The error was not harmless because, without Mr. Grogan’s admission that the drugs were his, the government’s evidence of constructive possession was not overwhelming. Mr. Grogan did not have exclusive control of the car where the drugs and gun were found, having lent the car to friends a week earlier. The drugs were not in plain view, and none of the government’s witnesses saw Mr. Grogan in actual possession of the contraband. The government’s emphasis of Mr. Grogan’s drug-ownership confession in its closing argument made it further unlikely that the error was harmless beyond a reasonable doubt.

Exceptional Conduct Not Required for Early Termination of Supervised Release.

 In United States v. Hale, --- F.4th --- (6th Cir. 2025), the Sixth Circuit vacated a denial of early termination of supervised release because the prior Sixth Circuit opinions relied on by the district court incorrectly held that early termination is only warranted upon a showing of exceptionally good behavior. Mr. Hale was on ten years’ supervised release in connection with his conviction for violating the Sex Offender Registration and Notification Act. About four-and-a-half years into his supervised release term, Mr. Hale moved for early termination with no opposition from the government. In support, he offered letters from his state probation officer, therapist, and long-time friend attesting to his compliance. Although the district court praised Mr. Hale for his “positive behavior,” it cited United States v. Atkin, 38 F. App’x 196, 198 (6th Cir. 2002) for the proposition that “[e]arly termination of supervised release is a discretionary decision that is only warranted in cases where the defendant shows changed circumstances – such as exceptionally good behavior,” and held that Mr. Hale’s conduct did not satisfy that high standard.

The Sixth Circuit agreed with Mr. Hale that Atkin and subsequent unpublished decisions misstated the standard set out in 18 U.S.C. § 3583(e)(1), which requires the district court to determine whether early termination “is warranted by the conduct of the defendant released and the interest of justice,” in addition to certain § 3553 factors, and does not require exceptional conduct as a prerequisite to early termination. It thus remanded the case for reconsideration under the proper legal standard.

A Prior Drug Conviction Constitutes a Career Offender Predicate if, Under the Categorical Approach, It Qualified as a “Controlled Substance Offense” at the Time of Conviction.

In United States v. Drake, --- F.4th --- (6th Cir. 2025), the Sixth Circuit reaffirmed its holding from United States v. Clark, 46 F.4th 404 (6th Cir. 2022), that, when determining whether a prior drug conviction constitutes a “controlled substance offense” counting towards a defendant’s designation as a “career offender” under §§ 4B1.1 and 4B1.2 of the Sentencing Guidelines, a court must consult the drug schedules in place at the time of the prior conviction, rather that those in place at the time of the instant federal sentencing.

Clark involved a defendant sentenced for a drug crime as a career offender based on prior Tennessee marijuana convictions. In the time between the prior marijuana convictions and the federal drug offense, Tennessee and the federal government amended their respective drug schedules to narrow the definition of “marijuana” by excluding hemp. The Sixth Circuit held that Mr. Clark was properly sentenced as a “career offender” because hemp was classified as “marijuana” at the time of Mr. Clark’s prior convictions, and that the subsequent change in the law was irrelevant.

Drake involved essentially the same issue. He was sentenced as a “career offender” for possession with intent to distribute fentanyl, cocaine, and methamphetamine and received a 200-month prison term. One of the predicate convictions was an Ohio conviction for marijuana trafficking from 2016. In 2016, Ohio’s definition of “marijuana” included hemp, but that was no longer true at the time of his federal sentencing.

Mr. Drake argued that the Clark opinion had been undermined by the U.S. Supreme Court’s recent decision in Brown v. United States, 602 U.S. 101 (2024). Although that case held that the definition of “serious drug offense” in the Armed Career Criminal Act incorporated the time-of-conviction approach, the Court also observed that changes in law are treated differently under the ACCA than under the Guidelines. In rejecting Mr. Brown’s argument that it should follow the ordinary practice of applying the most up-to-date version of the Guidelines Manual, the Court observed that, while 18 U.S.C. § 3553(a)(4)(A)(ii) requires courts to apply the Guidelines “in effect on the date the defendant is sentenced,” the ACCA contains no similar instruction.

The Sixth Circuit found, however, that Clark continues to apply after Brown because the requirement that courts use the current version of the Guidelines Manual doesn’t answer the question of what the term “controlled substance” in § 4B1.2 of that current manual means. It held that the text and purpose of § 4B1.2 supports a time-of-conviction approach and that the district court correctly treated Mr. Drake as a “career offender.”

 

An above guideline sentence in a revocation proceeding is upheld where it is based on the past conduct of a defendant who has significant mental health issues.  

Mario Adams was charged with being a felon in possession of a firearm. He had a long history of mental health issues and was twice found incompetent to stand trial on the firearm charge. He pleaded guilty to the charge after a third psychiatric evaluation determined he was competent. He was sentenced to 87 months imprisonment and a 36-month term of supervised release. United States v. Adams, --- F.4th --- (6th Cir. 2024). https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0275p-06.pdf 

 Mr. Adams was alleged to have violated supervised release by missing drug tests. The violation report referred to his continuing struggles with mental health and substance abuse and it also noted that he met the criteria for multiple mental health conditions. Further violations resulted in a 4-month placement in a halfway house, but he was removed from it due to his behavior.

 Ongoing violations of supervised release caused the district court to impose a new 90-day stay at the halfway house and a new 30-month term of supervised release. Mr. Adams showed significant improvement at the halfway house but left the facility shortly before the end of the 90 days. Probation officers could not locate him and had no contact with him for about a year. During that time, he was convicted in state court of felony assault and breaking and entering but he was not sentenced to incarceration.

 The district court revoked his supervised release based on the state crimes, leaving the halfway house, and not checking in with probation officers. The guideline range was 8 – 14 months but he was sentenced to the statutory maximum of 24 months. On appeal, Mr. Adams argued that his sentence was procedurally unreasonable because the district court used his mental illness to justify an upward variance.  

 The Sixth Circuit concluded that it did not have to decide the “important questions” Mr. Adams raised about whether an upward variance can be imposed to account for the danger a defendant may pose because of his mental health issues. Slip Op. at 9. The Court found that the sentence could be affirmed based on Mr. Adams’s conduct, leaving the halfway house, absconding from supervision, and committing new offenses especially one that involved violence. Although “some of his conduct may have stemmed, at least in part, from mental illness … a district court may rely on a defendant’s past conduct in determining the appropriate sentence.” Id.

 The Sixth Circuit noted that the district court reviewed Mr. Adam’s past conduct including prior supervised release violations and attempted treatment interventions, and it previously treated his mental health issues as a mitigating factor. As the Sixth Circuit saw it, the district court was not treating Mr. Adams’s mental health issues as an aggravating factor. Instead, the district court concluded that his mental illness could no longer be treated as a mitigating factor because of his recent conduct. Slip Op. at 10. In the Sixth Circuit’s view, the district court believed that a longer sentence was necessary “despite [Mr.] Adams’s mental health, not because of it …” Id. at 11 (emphasis original).

    One other point is worth noting. At the revocation sentencing, the district court made “passing references” to the earlier competency evaluation which explained the multiple diagnoses of Mr. Adams. Slip Op. at 11. Although the Sixth Circuit did not consider those references to be the basis of the sentencing decision, the Court cautioned against “reliance on statements by medical professionals in a competency evaluation as a basis for a sentencing aggravator …” Id. The Court pointed out that “competency reports are generally not meant to assess dangerousness, or any § 3553(a) factor.” Id.

 

 

 

 

 

 

 

 

 

 

 

 

Sixth Circuit considers zero-point offender’s eligibility for a sentence reduction under U.S.S.G. § 4C1.1.

Shefiu Hanson pleaded guilty to wire fraud and conspiracy charges which stemmed from a fraudulent scheme to induce businesses to wire money to accounts that he controlled. The total loss to the thirty victims of the fraud was more than 1.1 million dollars. Mr. Hanson was sentenced to 46 months and subsequently moved for a sentence reduction under 18 U.S.C. § 3582(c)(2). 

Mr. Hanson’s motion was based on Amendment 821, which created U.S.S.G. § 4C1.1(a). The guideline provides for a two-level offense reduction for certain zero-point offenders and applies retroactively to defendants sentenced before Amendment 821 went into effect. See U.S.S.G. § 1B1.10(d). Although Mr. Hanson had no criminal history points, the district court found that he was ineligible for a sentence reduction under § 4C1.1(a)(6) because he caused substantial financial harm to his victims. The ruling was affirmed on appeal. United States v. Hanson, --- F.4th --- ((6th Cir. 2025). https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0003p-06.pdf

Section 4C1.1(b)(3) played a large part in the Sixth Circuit’s analysis. The guideline provides that in determining whether “substantial financial hardship” resulted from the defendant’s “acts or omissions,” the district court “shall consider, among other things, the non-exhaustive list of factors provided in Application Note 4(F) of the Commentary to § 2B1.1.” The Sixth Circuit emphasized that district courts are not limited to considering only the factors in § 2B1.1 n.4(f) when determining whether “substantial financial hardship” is established. In this case a victim impact statement as well as information in the PSR showed that several victims experienced “substantial financial hardship.”

 

 

 

 

Patchy explanation for box in truck justifies search

 The Sixth Circuit reversed the suppression of evidence from a traffic stop today in United States v. Urraca, concluding that “objective facts known to the officers warranted each step of the investigation.”

The traffic stop began as a “regulatory inspection” of a semitrailer.  According to the officer, the driver was “sitting oddly with his back not touching the driver’s seat” and “the trucking company had the worst possible score (99) for a company still allowed to operate.” Then, after stopping the truck, “a driver of another car” told the officer the trailer had been swerving, and the officer found that the driver’s paperwork was in disarray. Officers eventually entered the passenger compartment, where the driver and a codriver started to seem evasive when asked about a bunk and box under it. The driver said the box contained items belonging to the truck’s owner. The officer ordered a drug sniff, which uncovered narcotics.

The Sixth Circuit, unlike the district court, decided that a reasonable officer, apprised of all the facts, would have had a legitimate reason to suspect that the truck contained drugs at the time he ordered the dog sniff.  The court pointed to three aspects of the inspection: (1)  the drivers’ reaction when Fuller asked them about the bunk and the box; (2) “the box itself and the drivers’ explanation for it”; and (3) “the context in which these events occurred, all after [the driver]’s half-truths, apparent lies, and unexplained deviations from standard industry practice.”

An Article III Conundrum? Are There Limits on How Much Authority District Courts Can Delegate to the USPO in Supervising Defendants?

 A grand jury indicted Eric Vaughn for being a felon in possession of a firearm. After he pleaded guilty, the District Court sentenced him to 53 months' imprisonment followed by three years of supervised release.

Vaughn appealed Special Conditions 1 and 2 of his supervised release, claiming both conditions improperly delegated the District Court's Article III powers to the probation officer - the former delegating the authority to determine the frequency of his drug and alcohol testing, and the later giving the probation officer the leeway to decide whether he was to undergo inpatient or outpatient mental-health treatment.  In a published opinion, the Sixth Circuit disagreed. It noted that district courts could leave the implementation of drug and alcohol testing up to probation officers when they impose testing a special - as opposed to a mandatory - condition. Since the District Court imposed testing on Vaughn as a special condition of its supervised release, the Court concluded no Article III violation occurred.

The Court similarly held that the District Court did not err in allowing the probation officer to decide whether Vaughn had to undergo inpatient or outpatient drug treatment. Noting that Vaughn had failed to object to the imposition of this condition, and that there was no binding Sixth Circuit precedent on the issue, the Court held that the District Court did not commit plain error.  

 

Sunlight Does Not Extend to Snitches: Court Holds Plea Agreement Supplements are not Public Documents

In general, the First Amendment guarantees the public access to court proceedings and documents. Does this extend, however, to a defendant's cooperation agreement with the Government? The answer is no according to the Sixth Circuit's recently published opinion in United States v. Kincaide. 

Martavious Kincaide pleaded guilty to three federal firearms offenses in the Western District of Kentucky. Deandre Swain, who was facing murder and wanton endangerment charges before a Kentucky state court, filed a motion to intervene in Kincaide's federal case for the sole purpose of asking the district court to unseal Kincaide's plea agreement supplement. Swain presumably hoped to use the supplement to impeach Kincaide's testimony in the event he testified against him at his trial.

In support of his request, Swain argued that the Western District's general order protecting cooperation agreements was facially unconstitutional for violating the First Amendment. He appealed the district court's subsequent denial of his motion.

The Sixth Circuit subsequently affirmed the district court's decision in published opinion, holding that the First Amendment does not recognize a public right of access to cooperation agreements. Utilizing the "experience and logic" test established by the United States Supreme Court in Press-Enterprise Company v. Superior Court, the Court noted that substantial assistance agreements have a "relatively brief history" without a "consistent national practice...." Thus, the Court held, there was little historical record supporting any claim that the general public traditionally had access to plea agreement supplements.

The Court next noted that plea agreement supplements also failed the "logic" prong of the analysis. Citing data that nearly 600 government cooperators were either harmed or threatened over a three-year period, the Court concluded that granting the public access to such agreements endangered not only government cooperators but also government investigations.

The Court also rejected Swain's argument that United States v. DeJournett, which upheld public access to plea agreements, supported his request, noting that the Court only addressed plea agreements, not their supplements, in that case. In addition, the Court addressed a circuit split with the Ninth Circuit, noting that it found its decision In re Copely Press - holding that cooperation addendums were subject to First Amendment access - was not persuasive. 

This case presents an interesting example of the balance between the First Amendment right guaranteeing public access to government proceedings and the practical considerations facing defendants when they choose to cooperate with the Government. While there is apparently a circuit split, the Sixth Circuit has decided to err on the side of protecting cooperating defendants.