Saturday, April 18, 2015

Determining Competency

A recent pair of Sixth Circuit cases elucidate the procedure for determining competency—particularly  when a defendant seeks to represent himself. In such circumstance, there are two questions: (1) whether the defendant is competent to stand trial and (2) whether the defendant is competent to represent himself. Under Indiana v. Edwards, 554 U.S. 164 (2008), a district court may appoint trial counsel to a defendant incompetent to conduct a trial even if the defendant is competent to stand trial. A defendant may not represent himself in regard to the first question, but apparently may represent himself in regard to the second.

In United States v.Martin, the Sixth Circuit reversed a conviction because “there [was] nothing in the record to suggest that counsel represented [the defendant] at the [competence] hearing or participated in any way in the determination of [the defendant’s] competency.” The Court held that when “a criminal defendant’s competency to stand trial has been challenged, the validity of the defendant’s waiver of counsel is suspended until the issue of his or her competency is resolved.” The participation of standby counsel may be “sufficient only when standby counsel conducts an adequate investigation of the defendant’s competency and subjects the evidence . . . to meaningful adversarial testing.” (As an aside, the Court applied de novo review to the denial of counsel claim).

In United States v.Stafford, the Sixth Circuit upheld a determination that the defendant was both competent to stand trial and to represent himself. During the hearing to determine competency to stand trial, counsel represented Stafford. But at a subsequent hearing to further inquire into Stafford’s competency to represent himself, the district court noted that standby counsel was “not required to speak” (though it should be noted that standby counsel did speak and opined that Stafford was competent to represent himself). The appellate court emphasized the extensive record built by the district court in reaching its determination and the district court’s superior position to make determinations regarding competency.

These cases demonstrate the avenues and necessity for zealous advocacy even when a  
defendant seeks to proceed pro se.

The cases cited above are United States v. Martin, 11-6544 (6th Cir. April 15, 2015), and United States v. Stafford, 13-4188 (6th Cir. April 10, 2015).   

Tuesday, April 07, 2015

Too white to strike? Reverse-Batson rears its head

Today's unpublished Strong opinion shows the Sixth Circuit wrestling with the always-problematic reverse-Batson claim, made especially problematic here in light of some, shall we say, unusual comments made by the district judge during voir dire.

In a case with two African-American defendants, defense counsel exercised peremptory strikes against three white members of the jury pool. After the government raised a reverse-Batson challenge, the court determined that the defense had presented racially-neutral reasons for two of the strikes, but found that the last one was "poorly supported" and "pretextual." Defense counsel offered several explanations for striking the juror, including that he appeared to have worked for another potential juror and that he had stared at one of the defendants during voir dire. The court believed that both of those explanations were factually unsupported. But the court did not stop there. Instead, it unfortunately implied that the third juror was somehow just too white to strike:

"[T]he reason it appears to have been [pretextual] is that [the juror], who of all of our jurors, is actually remarkably white. He's just plain pale. He makes [defense counsel] and me look like we're rosy complected. That probably sounds bad, but he's just very pale, so, unfortunately, I don't know that that had anything to do with it."

Indeed, it did sound bad. Although the Sixth Circuit ultimately upheld the reverse-Batson determination, the panel "strongly disapprove[d] of the statements regarding relative skin tones that the district court made, and believe[d] that it could have addressed the government's Batson claim in any number of different (and more appropriate) ways."

Monday, March 23, 2015

If the government doesn't like a ruling by the district court, they need to appeal

After his supervised release was revoked, Mr. Burch filed a notice of appeal. He was a few weeks past the 14-day deadline for filing, so he also filed request for an extension of time.* The district court granted the request. The government did not appeal this ruling, or file a cross appeal. Instead, it challenged the order via a motion to dismiss the appeal as untimely, arguing the district court abused its discretion in granting the extension.

There is actually a circuit split on this issue. The Third Circuit rejects the motion to dismiss approach and holds a party must "appeal from the order granting the extension of time to appeal." The Tenth Circuit had a rather convoluted theory that a cross-appeal is only for instances where an appellee wants "more than it obtained by the lower-court judgment" and since the appellee was not seeking alteration of the judgment, they need not file a cross-appeal.

In United States v. Burch, 14-6232, the Sixth Circuit agreed with the Third Circuit and provided some clearer guidance: "litigants dissatisfied with a district court's judgment or order normally must file an appeal challenging the decision." "[A] party dissatisfied with a district court's order is well-served to file [an appeal], whether labeled an appeal or cross-appeal, within the relevant timelines." There is nothing about a time-extension order that suggests any different rule should apply to them.

The Sixth went on to describe instances where a motion to dismiss would be appropriate: where the court lacked jurisdiction; to enforce a valid appeal waiver in a plea agreement; or when a criminal defendant filed an untimely appeal without district court authorization.**

The government's motion to dismiss the appeal was denied. It appears Mr. Burch has until his release on April 28, 2015, to appeal his revocation and/or sentence, as he received jail time with no supervision to follow.

* Practice tip #1: if you must file your notice of appeal late, for whatever reason, file the notice AND a request for an extension of time. If you only file the notice, the Sixth Circuit will docket the case and then tell you in a rather public way that you need to move the district court to allow you to file out of time. Since you will have to do it anyway, go ahead and do it in the first place.

** Practice tip #2: When a defendant files a pro se notice of appeal, the Sixth Circuit will docket the case and notify trial counsel. DO NOT IGNORE THEIR MESSAGE. Even court-appointed counsel are considered appeal counsel unless and until they are relieved. Respond to the message. Put your appearance in. If the defendant has filed out of time, the Sixth will issue a Rule to Show Cause, basically asking trial counsel to figure out what's going on, get the district court's permission to file late, and get in touch with the client. When in doubt, do not do nothing.

Friday, March 20, 2015

Arson, Duplicity, and the Mail

In United States v. Singer, Mr. Singer was convicted of involvement in a fraudulent scheme to buy properties cheaply, obtain insurance coverage, and burn down those properties for insurance proceeds. The government charged Mr. Singer with mail fraud relating to the scheme, as well as individual use of fire to commit mail fraud counts for each property. In response to Mr. Singer's challenge, the Sixth Circuit held that a mail fraud count encompassing multiple acts of a conspiracy is not duplicitous. Further, even if it were duplicitous, a defendant is not prejudiced by avoiding the imposition of additional counts.

The Singer Court also addressed the statute of limitations for using fire to commit mail fraud. Mr. Singer argued that the statute of limitations began to run from the time of the fire. But the Sixth Circuit interpreted 18 U.S.C. 844(h) to be committed only once "a fire or explosive is used to commit another felony - in this case, mail fraud." As a result, the clock began to run at the time of the mailings, not the fires themselves.

Additionally, Mr. Singer argued that because his convictions under 884(h) arose out of the same indictment, they could not be "stacked" consecutively. In fact, the Singer court acknowledged "the government's decision to charge each fire as a separate 844(h) offense is arguably in conflict with its theory that the fires all were part of the same underlying scheme." Nonetheless, the Sixth Circuit found no plain error. The decision also briefly concluded Mr. Singer's severance argument was waived.

Thursday, February 19, 2015

Welcome To Your New Home. The Previous Occupant Committed Crime--We're Here to Search!

Police officers may use evidence garnered from their investigation of a previous occupant to search a home even after a new occupant takes possession. In United States v. Burney, the police spent eight months uncovering substantial evidence that two individuals (Ross and Brown-Jennings) were using a house (the Litchfield property) as part of a drug conspiracy. The police applied for and received a search warrant to search the Litchfield property.

But weeks before the search, Burney moved into the Litchfield property. The police had no evidence that Burney was involved in the drug conspiracy--though they noted in the affidavit supporting the warrant application that Burney had five previous convictions for possession of crack (and that he remained on parole). Moreover, (as Judge White noted in dissent), the affidavit was ambiguous as to whether the police had observed Ross engage in any drug activity at the Litchfield property for months before Burney moved in. Hence, Burney argued that the police lacked probable cause to believe that evidence of crime would be found at the residence (and that any indication that evidence would have been found before Burney took up residence was stale).

The Sixth Circuit rejected Burney’s arguments: “Ross’s and Brown-Jennings’ many connections to the property, together with its having sat vacant for months and only recently having been occupied by a man with multiple drug convictions, made it reasonable to conclude that the property was one of Ross’s stash houses, so that there would be evidence of drug trafficking within it. This is so regardless of whether police had any evidence tying Burney to Ross.” Op. at 6. The majority relied: (1) on the police having seen Ross’s vehicle (though not Ross) at the Litchfield property at some point closer in time to the search; (2) on its finding that the Ross conspiracy was a large-scale drug trafficking and money laundering operation; (3) on its assessment that Burney had a propensity for joining large scale drug conspiracies because he had multiple convictions for possession of crack; and (4) on the fact that Brown-Jennings continued to hold title to the property and receive utility bills for it.

Noting that probable cause is “not a high bar” and that a magistrate’s probable cause assessment should be afforded “great deference,” the Sixth Circuit affirmed Burney’s conviction. Op. at 5 (citations omitted). In so doing, the Court illuminated how much deference it will afford police when a seemingly material change occurs (i.e, a change of occupants at a residence) before police apply for and execute a search warrant. In addition, the decision demonstrates a significant divide within the panel: Judge White, in dissent, found that the good faith exception could not rescue the search, but the majority found no reason to address the Leon exception.

The case discussed above is United States v. Burney, 14-3526 (6th Cir. February 19, 2015), and may be found here.

Wednesday, February 18, 2015

Is leniency "substantively unreasonable"?

The long, painful journey of United States v. Robinson achieved another milestone today, having traveled from district court to the Sixth Circuit to the Supreme Court to the district court and now back to the Sixth Circuit. (Phew.) The result is an opinion that politely suggests that district courts should never impose non-custodial sentences for certain defendants no matter what those defendants' personal characteristics are (at least not child-porn defendants), and should instead put the greatest emphasis on the severity of the crime (as designated by Congress and our collective indignation at this particular offense).

Factually, the district court had sentenced Mr. Robinson to one day of imprisonment with five years of supervised release. The Sixth Circuit found that to be substantively unreasonable in United States v. Robinson, 669 F.3d 767 (6th Cir. 2012). On remand, the defendant put forth considerable post-conviction mitigation evidence and new psychological evidence showing that he suffered from severe mental illness when he committed his offense. The district court resentenced him to one day of imprisonment, but increased his supervised release period to ten years. The Sixth Circuit not only disagreed but was "dismayed" at the resentencing. It vacated the sentence and reassigned the case to a new judge with tacit orders to put the defendant in prison.

For the defender community, there is more weeping and gnashing of teeth to be done over this opinion, but for now the opinion certainly raises a few unanswerable questions:

1. What the heck is substantive unreasonableness? The Sixth Circuit is one of the few that actually rules based on substantive unreasonableness, but statements like the following sure make it seem a lot like procedural unreasonableness: "The deficiency of the district court's analysis of potential unwarranted sentencing disparities on a national level contributed to the imposition of a substantively unreasonable sentence."

2. Does a "serious offense" always mean that a custodial sentence is required? The court takes pains to remind us that possession of child pornography is a "serious offense," which is no doubt true. But so are many other crimes that result in non-custodial sentences on occasion. Does this mean bank robbery could never be punished by a non-custodial sentence? Drug trafficking? Fraud? The court puts great weight on the 10-year maximum sentence, but that is hardly uncommon in the federal criminal code.

3. If a court ever wants to impose a non-custodial sentence, how could it address the general-deterrence element of Section 3553(a)? The district court here made substantial findings regarding the defendant's need for specific deterrence, then noted that this case had not generated any publicity that would affect the general-deterrence calculus. That was not enough, the opinion suggests, because general deterrence is "a goal that this Court has found particularly salient in the child pornography context."

4. Does the court intend to move the goalposts on "seriousness" by claiming that possession of 7,000 images is a "staggering number"? It would be interesting to test this number empirically, but an informal poll suggests that it is more "about average" than "staggering."

5. Would a significantly above-guidelines sentence face the same scrutiny regarding sentencing disparity? The court notes that 96.6 percent of child-pornography defendants face time. Does that mean that an above-guidelines sentence that only occurs 3.4% of the time is necessarily substantively unreasonable?

6. What weight should courts afford post-sentencing mitigation evidence, as compared to the seriousness of the offense? The court here simply states that "[a]lthough the mitigating evidence appears significant, its presence in the record cannot cure the defects in the district court's analysis...." Disregarding the fact that this still sounds like procedural unreasonableness, is the court suggesting that such mitigating evidence could never outweigh the general seriousness of an offense? (Somewhat remarkably, even the government agreed that the mitigating evidence was powerful enough that the defendant should be sentenced to only a below-guidelines three-year sentence. Would that be severe enough for the court? In other words, this opinion emerges from a dispute over an incredibly small sentencing range of between zero and three years.)

The opinion's reference to and reliance on the Sixth Circuit's prior Bistline opinion strongly suggests that this opinion, like Bistline, will be finding its way in and out of the courts for some time to come. Godspeed, Robinson.

Monday, February 09, 2015

Limiting 404(b) evidence, one unpublished opinion at a time

One could be forgiven for missing the defense win in United States v. Richardson, buried as it is in the bottom of Friday's unpublished cases. But in it, Judge Clay wages his quiet campaign against the government's ever-expanding use of 404(b) evidence to prove "motive" or "intent" in drug cases.

The opinion addresses the familiar case in which the government seeks to use a defendant's prior drug conviction to prove "intent" to commit a similar crime: here, drug-trafficking convictions that were 13 years old at the time of the defendant's new drug-trafficking trial. The appeals court vacated the conviction and sentence. The problem, as Judge Clay correctly points out, is that the government never actually presented any evidence or argument regarding exactly how these prior convictions prove intent to act 13 years later, aside from a post-hoc series of inferences that the government suggested on appeal. Absent any such proof, the evidence veered dangerously into the territory of impermissible propensity evidence, especially in light of other, more convicing proof the government had available to it. (Which may speak to Mr. Richardson's chances at his retrial.)

A few notes:
1. The opinion deftly side-steps a circuit-split regarding the standard of review.
2. In a dissent, Judge White agrees that the district court erred in admitting the 404(b) evidence but believes the error was harmless.
3. This is one of those unpublished opinions that makes the reader wonder exactly why it is unpublished.
4. Unmentioned in the opinion is the fact that this was the product of the characteristically fantastic advocacy of the Vanderbilt Appellate Litigation Clinic.