Wednesday, May 17, 2017

Dr. Evil needs some legal "advise" ... or is it "advice?"


When criminal-law cases imitate art,
they do not always choose its highest form.




The Secret Service pays close attention when nefarious packages arrive at accounting firms from “Dr. Evil” - especially if “Dr. Evil” threatens the release of undisclosed tax returns of a presidential candidate unless $1 million in bitcoins is exchanged.

In August 2012, the Franklin, TN office of PricewaterhouseCoopers received a padded envelope containing a flash drive and letter demanding $1 million in bitcoins to stop the release of Mitt Romney’s undisclosed tax returns. The letter provided that the flash drive had these encrypted tax files and upon receipt of the bitcoins, an encryption key would be provided. The Williamson County Republican and Democratic party offices also received letters a few day later. After that, posts were placed on Pastebin.com that described the stolen documents and referenced the mailed letters. Several of these posts were signed by “Dr. Evil” and had the movie character’s image superimposed on the lobby of PricewaterhouseCoopers’ Franklin TN office. “Dr. Evil” was also wearing a Secret Service badge.

No matter how careful a technologically savvy extortionist may be – there are always digital crumbs left behind - even when the extortionist portrays himself as “Dr. Evil” from Austin Powers: International Man of Mystery.

In Michael Mancil Brown’s case - some of those crumbs included photographs on the flash drives of Tripper and Valentine - two cats that lived next door to him. It is unfortunate that neither were called “Mr. Bigglesworth.” Other clues that assisted the Secret Service with pinpointing his identity included text strings left behind on the flash drives that provided his wife’s name and a user name frequently used by Brown; and his consistent inability to properly use ‘advice’ and ‘advise.’

The Secret Service obtained a trap-and-trace order to watch Brown’s online activity and subsequently obtained a search warrant for his home. More inculpatory evidence was obtained against Brown leading to his indictment. He was later convicted on six counts of wire fraud and six counts of extortion. He received a 48-month sentence and was ordered to pay restitution to PricewaterhouseCoopers in the amount $201,836 for the cost of its investigation. He appealed his convictions arguing that the Secret Service’s search warrant lacked probable cause and that he was prejudiced by the lower court’s decision to allow questions from the jury. 

The Sixth Circuit affirmed the convictions but vacated his sentence due to an improper obstruction of justice enhancement. Brown had given a list of names of people having access to his computer. This information was used at sentencing by the government to apply the obstruction of justice enhancement. The Court concluded that the statement actually helped the government, undermined Brown’s credibility, and bolstered the government’s case. Thus, the information provided by Brown did not significantly obstruct or impede the government’s investigation and did not justify the obstruction of justice enhancement pursuant to U.S.S.G. § 3C1.1. 

This Sixth Circuit opinion is truly an informative and groovy read, especially if you are a fan of the Austin Powers movies, or if you truly need a detailed legal analysis concerning the issues raised by Brown.



Monday, May 08, 2017

Ladies and Gentleman, we have a double header!

When the Sixth Circuit granted en banc rehearing to In Re: Ohio Execution Protocol, 17-3076, it scheduled argument in the very same order: June 14, 2017.

Now, there's our double-header, on October 11, 2017: Turner v. United States, 15-6060, the right to counsel pre-indictment case, in the morning, and United States v. Gibson, 15-6122, the "how much drugs for the puny co-defendant" case in the afternoon.

All three of these cases were granted en banc rehearing in 2017.

Sitting in a corner somewhere, singing "The Cheese Stands Alone," is United States v. Stitt, No. 14-6158, concerning whether Tennessee aggravated burglary is a violent felony. It was granted en banc rehearing on April 27, 2016. Mathis v. United States, 136 S. Ct. 2243 (2016), effectively reset the briefing schedule. That schedule ended in early September 2016. There has been a trickle of 28(j) letters since, with the Fourth Circuit's opinion in United States v. White, 836 F.3d 437 (4th Cir. 2016) (holding West Virginia's burglary statute is overbroad) in September 2016 and the Eighth Circuit's opinion in United States v. Simms, No. 16-1233, 2017 WL 1500308 (8th Cir. 2017) (holding same of Arkansas burglary). The government filed a hopeful, "hey this is when I'm not available in June and July," notice in January. There's still a chance of argument sometime in the fall, but it is probably more reasonable to contemplate a winter or spring sitting.

Sunday, April 30, 2017

Buyer's Remorse: Sixth Circuit Broadly Construes Appellate Waiver in Plea Agreement



When I first began representing defendants in federal criminal cases, the United States almost always agreed to permit the defendant to retain his or her right to appeal their sentence in the plea agreement.  Over the last several years, the United States has been less willing to remove all language regarding sentencing appeals from its plea agreements.  Instead, in many cases, it seeks to include language permitting the defendant to appeal a sentence only if it is outside of the maximum sentence authorized under the Sentencing Guidelines.  The Court's recent decision in United States v. Griffin is one of those cases.

In this case, Mr. Griffin pleaded guilty to conspiring to defraud the government by submitting false income tax refund claims and obtaining the fraudulent proceeds.  The plea agreement stated that Mr. Griffin waived his right to appeal his sentence, except "(a) any punishment in excess of the statutory maximum; or (b) any sentence to the extent it exceeds the maximum of the sentencing imprisonment range determined under the advisory Sentencing Guidelines in accordance with the sentencing stipulations and computations in this agreement, using the Criminal History Category found applicable by the Court."  After the District Court accepted his plea agreement, the United States Probation office prepared a PSR noting that, with an adjustment for acceptance of responsibility, Mr. Griffin's applicable Guidelines sentencing range was zero to six months.  

At sentencing, the District Court denied an adjustment for acceptance of responsibility and instead increased Mr. Griffin's base offense level by two points for obstruction of justice.  This changed his applicable Guidelines sentencing range to ten to sixteen months.  The District Court subsequently sentenced Mr. Griffin to twelve months imprisonment.  Finding that the District Court did not make sufficient factual findings to support its obstruction of justice enhancement, the Court remanded Mr. Griffin's case for resentencing.

Upon remand, the District Court again denied Mr. Griffin a reduction for acceptance of responsibility and again imposed the obstruction of justice enhancement.  This time, however, the Court imposed a ten-month sentence -- the minimum recommended under the Guidelines.  Mr. Griffin again appealed his sentence.

On Mr. Griffin's second appeal, the United States argued that the waiver language in Mr. Griffin's plea agreement barred his appeal.  Mr. Griffin, however, argued that the waiver did not apply because he received a sentence greater than the one contemplated in his plea agreement (zero to six months). The Court, however, disagreed, finding that the plea agreement did not contain stipulations limiting the Court to the zero to six month range.  For this reason, the Court found that the District Court imposed a sentence "under the advisory Sentencing Guidelines in accordance with the sentencing stipulations and computations" in the plea agreement.  Accordingly, it dismissed Mr. Griffin's second appeal.

Although one could certainly take issue with the Court's broad construction of the waiver language contained in Mr. Griffin's plea agreement (it does not appear the agreement hinged on the District Court's determination of the Guidelines range), it is a reminder that the devil is in the details regarding appellate waivers.  As the United States continues to clamp down on sentencing appeals, it is likely we will see similar cases in the future. 



Thursday, April 20, 2017

The en banc reviews keep coming!

Yesterday, the Sixth Circuit granted en banc review in United States v. Gibson, 15-6122. This case involves whether a co-conspirator who only directly handled a very small amount of drugs should be held accountable for the total amount of drugs involved in the entire conspiracy.

Though he only made three small sales of meth, Mr. Gibson pled guilty to conspiracy to distribute meth that involved fifty grams or more of methamphetamine. This triggered the ten-year mandatory minimum. Mr. Gibson made Alleyne arguments as well as Guideline arguments, both of which were rejected by the Sixth based on existing precedent. Judges Daughtrey, Rogers, and Cook were not entirely happy with the result. Judge Rogers wrote:

"The result in this case may appear unjust. Mandatory minimums for limited-amount co-conspirators do not serve the drug statute's underlying purpose of more severely punishing larger-amount drug dealers. Nonetheless, absent a change in our law from the en banc court, the Supreme Court, or Congress, we are bound by our precendents."

Judge Rogers also noted the Circuit split on the issue.

The Sixth has yet to schedule oral argument in Stitt, 14-6158, or Turner, 15-6060. Given all the summer vacation schedules in play, it is probably too much to hope for a triple-header sometime in July or August. Maybe after Labor Day? When it is still warm enough to grab an after-court ice cream or pastry at Graeter's before heading off to Arnold's for tasty adult beverages?

Saturday, April 15, 2017

Judges clash over venue for money laundering

Ronald Myers argued that he couldn’t be tried in the W.D. Mich. for money laundering because, although he stole motor homes in the W.D. Mich., he sold (and received laundered proceeds for) them solely in other districts.

In US v. Myers, issued yesterday, Judges Rogers and Merritt affirmed his convictions, over Judge Kethledge’s dissent.

The money-laundering statute allows prosecution in “any district where a prosecution for the underlying specific unlawful activity could be brought, if the defendant participated in the transfer of the proceeds of the specified unlawful activity from that district to the district where the financial or monetary transactions in conducted.” 18 U.S.C.§ 1956(i)(1)(B). 

As the majority saw it, the statute provided venue in W.D. Mich. because Myers’s motor-home thefts occurred there. Further, the majority decided that the statute doesn’t violate constitutional limits on venue because those limits “permit prosecution in a district where the crime was committed in part.” Although Myers's money-laundering “was completed elsewhere,” the majority reasoned, “it was begun and therefore committed in part in the Western District of Michigan.”

Judge Kethledge disagreed on the constitutional point. He explained that, in interpreting constitutional venue, the Supreme Court has looked “to the place of the ‘conduct elements’ rather than to the place of any ‘circumstance element[s]’ of the offense.” And, he argued, the only “conduct element” to a money-laundering offense is the financial transaction itself. Because the financial transactions at issue took place outside the W.D. Mich., Judge Kethledge would have reversed Myers’s money-laundering convictions.


In his conclusion, Judge Kethledge warned that "the Constitution requires us to determine venue crime-by-crime, rather than in gross." Which raises the question: What other statutes could be subject to venue challenge?

Thursday, April 13, 2017

Exciting development in Turner right-to-counsel case

Last February, Judges Merritt, Batchelder, and Rogers announced in Turner v. United States, 15-6060 that they did not like Sixth Circuit precedent holding that the right to counsel (and thus the right to effective assistance of counsel) did not start until after a defendant is charged, but were bound to follow the precedent. We discussed the case here.

Apparently Judges Merritt, Batchelder, and Rogers are not the only judges on the court who have concerns. Today, the Sixth Circuit unanimously ruled to rehear the case en banc. This is a very exciting development. Anyone who has been involved with a defendant charged in state court and facing the possibility of federal charges knows just how important it is to have effective representation during the gestation period, so to speak, of a potential federal action. The NACDL filed an amicus brief in support of en banc rehearing.

No schedule has yet been set. Perhaps we could have a double header one day this summer, with Stitt in the morning and Turner in the afternoon?

Wednesday, April 05, 2017

Sixth Circuit addresses crimes of violence under U.S.S.G § 2K2.1(a)(2)


In United States v. Harris, the Sixth Circuit addressed the issue of whether the Michigan offense of Felonious Assault is a “crime of violence” under U.S.S.G § 2K2.1(a)(2).

          Oscar Harris was convicted of being a felon in possession of a firearm. The Guidelines provide that the base offense level for a firearm offense is increased if that offense is preceded by two felony convictions for a “crime of violence” which is defined in U.S.S.G § 4B1.2(a) and Application Note 1 thereto. See U.S.S.G § 2K2.1(a)(2) and § 2K2.1 cmt. n.1. The district court determined that Mr. Harris’s two prior convictions for felonious assault were crimes of violence under the Guidelines.

          On appeal, Mr. Harris contended that felonious assault was not a “crime of violence” because it could be committed by an offensive touching which would not amount to “violent force” under Johnson v. United States, 559 U.S. 133, 140 (2010). Thus, a felonious assault did not fit within the “elements clause” of § 4B1.2(a)(1) because it did not categorically involve the “use, attempted use, or threatened use of physical force against the person of another.”

          In response to Mr. Harris’s argument, the Sixth Circuit examined Michigan law and found that the felonious assault statute required a finding of “at least attempted or threatened offensive touching and use of a dangerous weapon.” The court determined that a battery is “a forceful or violent touching” and when coupled with the use of a dangerous weapon those two elements involve “the use, attempted use, or threatened use of physical force” under § 4B1.2(a)(1). Taken together, the two elements amounted to violent force and thus constituted a crime of violence under § 2K2.1(a)(2).  

Prior Convictions can count as crimes of violence under the Guidelines and as violent felonies under the Armed Career Criminal Act (ACCA)


United States v. Patterson involves the defendant’s direct appeal and the government’s cross-appeal of the district court’s sentencing decision.

          Mr. Patterson was convicted in Ohio state court of receiving stolen property and a traffic offense. The same incident also resulted in a federal prosecution and conviction for being a felon in possession of a firearm. The district court denied Mr. Patterson’s motion to dismiss the firearm charge on double jeopardy grounds. The district court, however, counted Mr. Patterson’s prior Ohio convictions for aggravated robbery as crimes of violence under the Guidelines but not as violent felonies under the Armed Career Criminal Act (ACCA). The Sixth Circuit affirmed the denial of the motion to dismiss but reversed the district court’s sentencing decision because the prior convictions met the requirements of the Guidelines and the ACCA.

          The Sixth Circuit first noted that dual prosecutions do not constitute double jeopardy because Ohio and the United States are separate sovereigns and may prosecute a person under their separate legal systems. Mr. Patterson, however, contended that the government acted in “bad faith” because it should have notified him of its intention to file federal charges when he was considering the State’s plea offer. The Sixth Circuit explained that the record did not show that there was any federal collaboration in the state prosecution. The federal government was not involved in the state plea negotiations and the State did not promise Mr. Patterson that he would not be subject to a federal prosecution. In the court’s view, there was no evidence of bad faith. The court, however, did not reject Mr. Patterson’s bad faith argument out of hand and the implication is that it could work in a different situation.

          The “heart” of the case, however, was whether Mr. Patterson’s prior aggravated robbery convictions were predicate offenses under the ACCA. The Sixth Circuit’s analysis focused on the ACCA’s “elements clause” which describes a “violent felony” as an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” See 18 U.S.C. § 924(e)(2)(B)(i). Using the categorical approach to determine whether the “elements clause” encompassed aggravated robbery, the Sixth Circuit looked at the statutory definition of the offense rather than the underlying facts. In response to one of Mr. Patterson’s arguments, the court said it did not matter that the Ohio statute did not include an element that matched the ACCA’s elements clause word for word as long as the offense at issue required the State to prove everything included in the elements clause.

          Mr. Patterson also argued that Ohio statute did not expressly require the use of force or that the use of a deadly weapon must be against another’s person. The Sixth Circuit, however, determined that the Ohio Supreme Court construed the statute as containing those elements. As to Mr. Patterson’s argument that the statute would permit a conviction of someone who robs a store while just happening to be carrying a weapon openly (as Ohio law allows), the court said that as long as there was no reason to think that the statute could be applied to someone who used “minimal actual force” or did not threaten serious physical force against others, then “there is every reason to treat it as a crime of violence.”

          The Sixth Circuit concluded from the language of the Ohio statute and state court decisions interpreting it that aggravated robbery fell within the scope of the elements clause and was therefore a violent felony. Thus, Mr. Patterson should have been sentenced as an armed career criminal.

          Mr. Patterson raised another issue regarding his sentence. He contended that the district court committed error by treating his conviction for aggravated robbery with a deadly weapon as a crime of violence when it calculated the base offense level under the Guidelines. The Sixth Circuit noted that it used authority interpreting the ACCA’s elements clause to interpret “the same phrase in the Guidelines.” That led the court to conclude that the offense qualified as a crime of violence under the Guidelines. The court also cited Beckles v. United States, 137 S.Ct. 886 (2017) as a separate reason to reject Mr. Patterson’s argument because aggravated robbery with a deadly weapon “would have qualified as a crime of violence under the residual clause, which was still part of the Guidelines” when he was sentenced.