Becoming Emboldened

Busy day in that the Sixth published four criminal cases: two direct appeals and two habeas cases.

The first of the direct appeals was United States v. Bullock, Case No. 07-5632. In Bullock, the defendant "made threatening telephone calls to the offices of several public officials, including United States Congressman Harold 'Hal' Rogers, Pulaski County Circuit Court Judge David Trapp, and Pulaski County Circuit Court Clerk George Flynn," stating that he "was going to 'get rid of' these officials." Police went to the defendant's home where they located a SKS semi-automatic rifle. He was initially charged with intimidating a judicial officer and terroristic threatening in Kentucky state court, but those charges were later dismissed. ATF agents subsequently discovered that at the time of his arrest, Mr. Bullock was subject to a domestic violence order. The defendant was prosecuted for being in possession of a weapon while subject to a domestic violence order under 18 U.S.C. S 922(g)(8). The defendant pled guilty. The PSR calculated Mr. Bullock's Guideline range to be 18 to 24 months after the defendant's base offense level of 14 was enhanced four levels for possessing a firearm in connection with another offense under S 2K2.1(b)(6). The defendant received a three level reduction for acceptance of responsibility. Mr. Bullock appealed the district court's enhancement, arguing that the the test for whether a firearm was possessed in connection with another offense, i.e. Application Note 14 to S 2K2.1 ("if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense respectively"), amounted to double counting because all firearms had the potential for facilitating another felony offense. The Sixth found that the district court enhanced the defendant's sentence "not because of the mere theoretical possibility that the firearm would be used in some unspecified crime in the future, but rather because of the very real likelihood that Bullock's possession of the [firearm] facilitated Bullock's threats to 'get rid of' several public officials, including a United States Congressman." The Sixth stated that they had "never found that the S 2K2.1(b)(6) enhancement can be applied simply because there is a theoretical possibility that the firearm may be used to commit a felony at some unspecified future time."

However, the Sixth's reasoning on how the possession of a firearm "facilitated" the defendant's making threatening telephone calls is weak. The Sixth finds it axiomatic that the possession of the firearm facilitated the threatening phone calls because Mr. Bullock "was undoubtedly emboldened in the commission of this offense by his possession of a semi-automatic rifle, to which he openly admitted ownership when officers arrived at his home." Unless the government is arguing that Mr. Bullock used the barrel of the SKS to dial the telephone, I personally do not see how possessing or not possessing a firearm while one is making threatening phone calls facilitates anything. It may facilitate a subsequent theoretical assault, but not the threatening phone call. Apparently in the Sixth Circuit, if you illegally possess a .45 caliber pistol that emboldens you to the point of committing tax fraud, then S 2K2.1(b)(6) applies. This test for facilitation is a dangerous precedent because any criminal committing any crime can be emboldened through the mere possession of a firearm, even if the firearm has no ability to facilitate the actual commission of the alleged offense. Defense attorneys should try to nip this "emboldenment" test for facilitation of another felony in the bud.

In the other direct appeal this morning, United States v. Smith, Case No. 07-1375, the Sixth Circuit unsurprisingly found that prisoners released from prison to a "community residential home" did not have a reasonable expectation of privacy in their home. In analogizing the community residential home situation to that of probationers, parolees, and prisoners, the Sixth found that the defendant was "treated as a 'prisoner' living in a 'community residential home'," because he was subject to continuous monitoring and had to ask permission to leave the home. Relying upon the Supreme Court's opinion in Samson v. California, 547 U.S. 843 (2006), the Sixth found that officer's warrantless search of the defendant's home did not violate the Fourth Amendment because "Smith had little, if indeed any, reasonable expectation of privacy in being free from a suspicionless search of his residence."

Because I rarely practice habeas law, I often skip over habeas cases because of the inevitable lengthy procedural details that are contained in the opinion. I know it is a bad habit, but I only have so much time. But Harris v. Haeberlin, Case No. 05-5591, is interesting enough for me to comment on. In Harris the defendant had been tried in Kentucky state courts for kidnapping, robbery, and being a persistent felony offender. In jury selection, the defendant challenged the state's use of its peremptory challenges as being motivated by race under Batson v. Kentucky, but the trial court found that the state had race-neutral reasons for the challenges. After his conviction in trial, but before his appeal to the Kentucky Supreme Court, the defendant discovered that an in-court video recorder had turned on during a recess and recorded the prosecutor's discussion of their use of peremptory challenges. After pursuing his state court appellate and post-conviction procedures, the defendant raised whether or not the trial court should conduct another Batson hearing based upon the newly discovered evidence at the district court, which was subsequently denied. The Sixth Circuit found that it was necessary to remand the case for the trial court to "reassess prosecutorial credibility in light of the videotaped evidence." This case appears to rest upon the unusual occurrence of the defendant actually having hard evidence, versus circumstantial evidence, of a prosecutor's use of race in his decision-making on peremptory challenges.

In a ruling that finds the improper admission of 404(b) evidence harmless, Cristini v. McKee, the other habeas case today, the Sixth Circuit reversed a district court's grant of habeas relief to a petitioner based upon "the prosecutor's introduction of evidence of prior convictions in the state's case-in-chief and the prosecutor's arguments that the Petitioner's prior convictions showed a propensity for violence." The Sixth Circuit reversed the district court's finding that the prosecutor's use of prior bad acts evidence to argue that the defendant had a propensity towards violence was error, but also finding that the Michigan Court of Appeals was correct in finding the error harmless in light of "the admissible evidence that established the Defendant's guilt." The defendant also argued that the prosecutions calling defense witensses liars in closing was misconduct. However, the Sixth Circuit found that it was not misconduct because "the prosecution's argument was coupled with a detailed analysis of the record. Each time the prosecutor said some witness had lied, he explained why the jury should come to that conclusion. While his repeatedly calling these witensses 'liars' was hardly praiseworthy, these comments, viewed in context, were not improper."

Good Decision on Bad Traffic Stop

Today at the Sixth Circuit, a panel consisting of Daughtrey, Gilman, and District Court Judge for the E.D. Mich., Edmunds, reversed the Eastern District of Tennessee's denial of a motion to suppress and vacated a defendant's sentence on a firearms offense. Kudos to Jonathan Moffatt of the Federal Defender Services for the Eastern District of Tennessee for winning a tough suppression issue on appeal, I'm sure it made the wait from when he argued on October 31, 2007 until May 2, 2008 worthwhile. Although, I'm sure his client might disagree.

On the night of March 25, 2004, around 10:35 p.m. Mr. Marcus Blair stopped at a "known drug house in a high-crime drug-trafficking area" in Knoxville, Tennessee. An undercover officer witnessed Blair's car stop at the house and also claimed to have witnessed him engage in a hand-to-hand drug transaction. When Blair's car left the house, the undercover officer radioed to a colleague that a car was leaving the house, but failed to communicate which car or any information regarding the hand-to-hand drug transaction. An officer around the corner, who did not see the defendant's car stop at the suspected drug house nor the hand-to-hand transaction, stopped his car for a pretextual. . . sorry. . . purported "tag-light" violation. The nice thing about this traffic stop was that the police car was equipped with a video-recording device, so that not just the district court, but also the Sixth Circuit could witness the exact timing of what occurred during the traffic stop.

The officer testified that after he received Blair's license he returned to his car and observed that Blair was fidgety and "reaching underneath the seats of his vehicle." The officer conducting the stop testified that he was then informed that the undercover officer had witnessed Blair engage in a hand-to-hand drug transaction. However, the video-tape indicated that the arresting officer did not receive this information for four minutes after he had run the warrant check on Blair's license. At one point in time, Blair tried to exit his car to examine his "tag-light" but was told to remain in the car by the officer. Two minutes after the warrant check had returned negative, the arresting officer asked for permission to search the car. Surprisingly, Blair actually denied permission. The officer then threatened to call a canine unit to the scene if Blair didn't consent. Blair stood his ground, and the canine unit was called, once again approximately four minutes after the warrant check had returned negative. The arresting officer also testified that during the time following the call for back-up and the canine unit, Blair appeared to be nervous.

The Sixth Circuit noted that the video shows that Blair's tag-light was operating, but the arresting officer testified that he still could not read the tag from a distance of ten-feet. Seventeen minutes after the officer ran Blair's license for the purported tag-light violation, the canine unit arrived on the scene. At that time, Blair was told to exit the car so the dog could examine the car, was patted down, and a bag of crack cocaine fell from his pants.

The defendant was indicted on an unrelated federal firearms charge on June 15, 2004. On September 8, 2004, he entered into a plea agreement on that charge that stated that his plea "constitute[d] the full disposition of the known non-tax federal charges within the Eastern District of Tennessee." The PSR was completed on October 28, 2004, and indicated that Blair had been charged in state court on the drugs found on March 25, 2004. On December 6, 2004, Blair was to be sentenced on the gun charge, but that day he was informed that the U.S. would be seeking a federal indictment for the March 25, 2004 arrest. It was then that the defendant filed his Motion to Suppress and a Motion to Dismiss the indictment since it violated the plea agreement to the gun charge.

In reversing the district court's denial of the Motion to Suppress, the Sixth Circuit first noted that it "entertains serious doubt as to Officer Holmes's justification for the stop, primarily because the video evidence shows that the tag-light was fully-0perational." But the Sixth Circuit then found that "even if Officer Holmes had probable cause to stop Blair, the evidence seized as a result of the stop must be suppressed." The Sixth Circuit then dismissed of the district court's finding that the arresting officer had reasonable suspicion to believe that Blair possessed narcotics.

The Sixth Circuit rejected the government's contention that presence in a high-crime neighborhood at 10:30 p.m led to reasonable suspicion. The Sixth Circuit stated "That a given locale is well known for criminal activity will not by itself justify a Terry stop, although it may be taken into account with other factors." The lateness of the stop was another factor relied upon by the district court, but the Sixth Circuit found that 10:30 p.m. is "an hour not late enough to arouse suspicion of criminal activity." The Sixth Circuit also found that the arresting officer did not know of the hand to hand transaction at the time of the stop, and as such, it could not justify a Terry stop of the car.

This Sixth Circuit also rejected the government's contention that the stop was justified based upon the officer's collective knowledge. The Court found that "the officers did not make a collective decision to stop Blair, and thus Officer Munday's knowledge of the hand-to-hand transaction cannot be imputed to Officer Holmes."

Finally, the district court found that the purpose of the "tag-light" stop should have been completed around the time that the officer ran the defendant's license and found no outstanding warrants. The court found that the stop was unnecessarily extended at the time that the officer first asked for consent to search the car because "Officer Holmes had not developed reasonable, articulable suspicion of criminal activity by that point, we [therefore] hold that the remainder of the stop violated the Fourth Amendment." The Sixth Circuit also rejected the officer's fear that Blair might attempt to flee, the unsupported claim that he knew of the hand-to-hand transaction, and Blair's nervousness as justification for the extended stop. And in what to me is a SURPRISING AND VERY USEFUL HOLDING the Sixth stated that "while evasive behavior is a pertinent factor in determining reasonable suspicion, Wardlow, 528 U.S. at 124, Blair's act of reaching under the seats, without more, does not justify a Terry stop." The court found that Blair's prolonged detention violated the Fourth Amendment.

The Sixth then punted on the plea agreement issue finding that its decision on the Motion to Suppress resolved it. Finally, the defendant's guideline range was reduced from concurrent sentences of 120 and 121 months, as driven by the crack charges, to 30 to 37 months on the gun alone.

Last week at the 6th, all about the 5th, and a great quote for acquitted conduct

Amendment that is. Last week, the Sixth Circuit published two cases involving whether or not a potential defense witness' invocation of his Fifth Amendment rights prejudiced the defendant's right to present his case at trial. In both cases, the Sixth found that no prejudice occurred.

The Sixth started last Monday, April 7th, with its opinion in United States v. Highgate, No. 06-1447. Mr. Highgate was convicted in the Eastern District of Michigan for various drug and firearms charges, resulting in the district court sentencing him to 360 months imprisonment. Apparently back in 2004, the police were executing a search warrant on a home in Detroit, when Mr. Highgate was seen hiding a firearm and several packages of cocaine and heroin in the backyard. Also upon entry to the home, the police discovered a Mr. LaFrederick Jones inside, "who dropped bags of drugs to the floor upon seeing the officer". At trial, one police officer testified to arresting the defendant in the backyard. In his case in chief, the defendant sought to introduce the testimony of Mr. Jones to the effect that the officer who testified that he arrested Mr. Highgate was not the one who arrested him, but instead that it was a female officer. Mr. Jones had already been convicted and sentenced for his actions on that day. Mr. Highgate called Mr. Jones, but before he could ask any questions, the court stated that it was his understanding that Mr. Jones intended on taking the 5th Amendment. When Mr. Jones stated that was true, the court excused him.

On appeal, Mr. Highgate challenged the district court's dismissal of Mr. Jones without an inquiry into whether Mr. Jones's invocation of his 5th Amendment rights was legitimate. The Sixth Circuit agreed that it was error for a district court to accept a blanket assertion of the 5th Amendment without inquiring into the legitimacy of the witness' fear of prosecution. However, the 6th Circuit found that the district court's error was harmless in this case because they could not conclude that the error affected the outcome of the trial.

Mr. Highgate also raised an issue relating to his 360 month sentence. The district court, upon imposing sentence stated that he felt the Guideline range was too high for Mr. Highgate, but that he felt as if he was required to impose that sentence. The Sixth Circuit was reviewing this sentence under plain error grounds BECAUSE DEFENSE COUNSEL FAILED TO OBJECT TO THE SENTENCE IMPOSED AT THE END OF THE SENTENCING COLLOQUY. However, the Sixth Circuit found that Mr. Highgate could meet the prejudice requirement of plain error because of the district court's plain disgust with the Guideline sentence. The Sixth Circuit stated that "[a]t this stage of the game, sentencing courts frustrate effective appellate review by walking mechanically through the now-advisory Guidelines, lodging their regret all the way." They found that this equalled procedural unreasonableness because the district court treated the Guidelines as mandatory. The Sixth remanded Mr. Highgate for resentencing.

The second interesting opinion on the Fifth Amendment from last week was the case of United States v. Hunt, No. 06-6300/6301. Hunt involved Medicare fraud scheme involving several doctors. Dr. Hunt maintained his innocence and proceeded to trial. At trial, he attempted to introduce an affidavit prepared by a Mr. Noble that was made during the investigation which stated that he believed Dr. Hunt did nothing wrong. He also attempted to call Noble and a Dr. Bartee to testify. Both men refused to testify on 5th Amendment grounds. Apparently the district court in this case did what the district court in Mr. Highgate's case failed to do and inquired into why they were invoking their Fifth Amendment right. Dr. Bartee "refused to testify because of concerns about how his testimony might affect his diversion agreement, which had not been finalized by the time of trial, and Noble refused to testify because of his exposure to potential prosecution in other districts." After the trial and guilty verdict, the district court sentenced the defendant to 5 years probation, even though his Guideline range was 27 to 33 months.

Hunt challenged the dismissal of Noble and Dr. Bartee on the grounds that the government effectively made the witnesses unavailable. The district court found that the government did not make them unavailable because, "the Government did nothing to discourage or inhibit them from testifying."

Hunt also challenged the district court's exclusion of the statements from Noble's affidavit. The Sixth found that the statements were not admissible. They ruled that the statements amounted to hearsay, and that the exception found in Rule 804(b)(1) for the unavailable witness did not apply. They also ruled that the affidavit was not given at another hearing or different proceeding. Finally they stated that the catch-all rule, 807, which allows for the admission of hearsay statements not otherwise covered by the rules if they are trustworthy did not apply because the district court found the affidavit to be untrustworthy. The Sixth also found that the statements were not admissible for impeachment.

Finally, in Hunt, the Sixth Circuit thumbed its nose at Gall's abuse of discretion review, and reversed Hunt's sentence as substantively unreasonable. The Sixth Circuit found that the district court's statement that it had doubts regarding Hunt's intent to engage in criminal acts was improper. In an interesting quote that could be useful for the defense attorney challenging the use of acquitted conduct at sentencing, the Sixth stated that it was error "if the district court did so rely [on its doubts about Hunt's intent], then it is necessary for us to remand under the abuse-of-discretion scope of review. This is because it would be improper for the judge in the sentencing to rely on facts directly inconsistent with those found by the jury beyond a reasonable doubt. Indeed, we have stated repeatedly, albeit outside the sentencing context, that a district court abuses its discretion when it relies on clearly erroneous facts." The Sixth then remanded for resentencing. While I'm confident that the difference in being convicted beyond a reasonable doubt and being acquitted and then having the sentencing court find the facts by a preponderance will end up nullifying the effectiveness of this quote, I feel that is an excellent quote from the Sixth that can be used by defense counsel for any case where acquitted conduct is at issue.

Hi

My name is Richard Strong, the rws in the Memphis Federal Defender's office. At a CJA conference our office a few months back, I talked with Sumter Camp about helping out on this blog, and I thought it would be a lot of fun. So of course I forgot completely about it for a couple of months until Sumter helped kick start the process of getting me on board with the blog. Anyway, to make a long story short, I'm looking forward to trying to help reinvigorate this blog.

I wanted to start last week with several interesting decisions from the 6th, but because of a nice public corruption appeal that I was working on, I couldn't find the time. But without further ado....

Unbuckled seatbelts and prior gun case do not justify "officer safety" patdown

Drugs found in "officer safety" pat-down were properly suppressed. No reason to believe that driver and passenger (defendant Wilson) were armed or dangerous, and therefore no reason to pat down defendant Wilson, when they are pulled over for seatbelt violations, even though the driver was rambling to police and admitted that he previously served federal time on a gun charge. The opinion also notes that the "officer safety" concern in traffic stops arises not solely from the person in the stopped car, but also from accidental injury from passing traffic. US v. Wilson, No. 06-6339 (6th Cir. 10/29/07)

Now is the Time to Challenge Acquitted Conduct

Today in US v. White, No. 05-6596, a Sixth Circuit panel (Merritt, Daughtrey and Griffin) reluctantly upheld a sentence which included a 14 year enhancement based on conduct for which the jury had acquitted the defendant. Despite upholding the sentence, all three judges expressly agreed that such use of acquitted conduct is an issue that needs to be considered via en banc review. So if this comes up in any of your cases, be sure to raise it at sentencing and on appeal.

Possession of Sawed-off Shotgun Not A Violent Felony

In United States v. Amos, the Sixth Circuit became the first circuit court to rule that a conviction for the possession of a sawed-off shotgun does not constitute a violent felony under the Armed Career Criminal Act. Six circuits had previously ruled to the contrary, on the idea that, since a sawed-off shotgun generally lacks any legitimate purpose, its possession must present a serious potential risk of injury. The Amos panel rejected that idea, relying on the plain language of the statute and then-Chief Judge Breyer's seminal decision in United States v. Doe that a felon--in-possession conviction does not constitute an ACCA violent felony. The basic rationale of the court was that the ACCA definition aims to embrace offenses of an active, rather than passive, nature, and that not all instances of possession of a sawed-off shotgun carry a serious potential risk of injury. Amos is the latest in a series of post-Leocal circuit decisions where the courts have taken a closer look at the violent felony or "crime of violence" definition, and recognized that the statuory language simply does not embark essentially passive offenses which do not, by the terms of their definition alone, create a dangerous situation. Great work by attorneys Michael Holley and Doug Thoresen at FPD in M.D. Tenn.

Rita Fallout

In U.S. v. McGee, No. 06-1554 (6th Cir. 7/11/07) Judge McKeague writes, "Finally, Appellant argues that the presumption of reasonableness applicable to a sentence within the Guidelines range 'is not necessarily the appropriate way to review sentences,' and he asks us 'to reconsider its standard of review and to better define what a criminal defendant must do to rebut the presumption of reasonableness.' ... As we are bound by the Supreme Court's decision in Rita, we must deny the first part of Appellant's request." (Emphasis added) This overstates the holding in Rita.

The Supreme Court defined in issue in Rita as “whether a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines.” Rita v. United States, No. 06-5754 (2007) (Slip Op. 7) (emphasis added) He later explained that “we permit courts of appeals to adopt a presumption of reasonableness.” Id., slip op. 15. In answering that a court of appeals could apply such a presumption, the Supreme Court did not mandate that every court of appeals must apply such a presumption, only that one could if it chose to do so.

Justice Breyer wrote for the Chief Justice and Justices Alito and Kennedy. In order to get a majority of the Court to sign off on this proposition, Justices Stevens and Ginsburg signed on, but wrote a separate concurring opinion. In that concurring opinion, Justice Stevens notes that he did not agree with the remedial part of the Booker decision, but is now bound to it by stare decisis. He notes that reasonableness review is simply the former abuse-of-discretion standard. As such, “[w]hile reviewing courts may presume that a sentence within the advisory Guidelines is reasonable, appellate judges must still always defer to the sentencing judge’s individualized sentencing determination.” Id., at slip op. 5 of the concurring opinion. (emphasis added)

The Court’s decision in Rita affirms the expanded role that the district court must now play in sentencing, including its duty to reject the Guidelines if it finds them to be in conflict with the 3553(a) factors in a given case or that they would result in a sentence greater than necessary to effect the sentencing goals. In doing so, it attempts to give meaning to Booker’s command that the Guidelines are now “advisory.” As Justice Stevens notes, “I trust that those judges who had treated the Guidelines as virtually mandatory during the post-Booker interregnum will now recognize that the Guidelines are truly advisory.” Id., at slip op. 7 of the concurring opinion.

To be “bound” by the Supreme Court’s decision in Rita, therefore, is to recognize in the first place that the appellate presumption is not mandatory and, in the second, that “the rebuttability of the presumption is real.” (Id.) This McGee does not do.