Thursday, September 24, 2015

Pre- and post-Miranda confessions take center stage

It's been another busy (and, at times, discouraging) week for published criminal-law opinions in the Sixth Circuit. The court dipped into legal esoterica in the Olive opinion, addressing at length whether one of two money-laundering counts should have merged in light of United States v. Santos, 553 U.S. 507 (2008). (The court concluded that there was a "merger problem," but that, under Santos, the consequences were not "markedly increased" by virtue of the error, so no harm no foul.) The court also reversed the grant of sentencing-phase ineffective-assistance-of-counsel relief in a death-penalty case in Morris, once again demonstrating that it believes that AEDPA all but precludes relief even for objectively egregious IAC claims.

Perhaps most relevant to the defense bar is the opinion in United States v. Ray, in which the court took a hard look at the relationship between pre- and post-Miranda confessions, wading into a circuit split on the subject.

Based on a (later-contested) search warrant, officers discovered marijuana and firearms in Mr. Ray's home. According to Ray, the officers threatened to arrest Ray's live-in girlfriend --- the mother of his 14-year-old son --- and make his child a ward of the state if he did not talk to them. Prior to receiving Miranda warnings, Ray took responsibility for all of the contraband in the house. An hour and a half later, Ray made statements at the police station that were consistent with his pre-Miranda statements, but the district court refused to suppress those statements. The district court did not consider the Supreme Court's opinion in Missouri v. Seibert, 542 U.S. 600 (2004), which addressed such questions. This failure alone was enough to warrant reversal, but the Sixth Circuit had to address what test to apply from Seibert's sorely divided opinion. Despite contrary precedent from other circuits, the court determined that because the plurality and dissent each received four votes, none of the opinions in Seibert "announce[d] a binding rule of law." Instead, the Sixth Circuit would have to formulate its own test. In doing so, it adopted the multi-factor test announced by the Seibert plurality, under which the admissibility of such statements "hinges on whether a 'reasonable person in the suspect's shoes could have seen the station house questioning as a new and distinct experience, [and whether] the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission.'" The court further detailed the factors to be considered in that analysis.

The opinion is also highly citable with respect to what evidence provides proof that a firearm was possessed "in furtherance of a drug trafficking crime" under 18 U.S.C. 924(c). Ray had three firearms, and the court held that two of them would not support such a conviction despite close proximity to drugs. One was an unloaded shotgun propped behind a door in the same room where drugs were found (with shotgun shells found in the same room), and another was a rifle in a room with no drugs. The court held that neither was "strategically located so that it is quickly and easily available for use." Unfortunately for Ray, a third weapon did suffice to meet the "in furtherance of" test, but this case may provide ammunition (pun intended) for defendants in future cases.

Tuesday, September 15, 2015

Week of September 8-11

Based on last week's rulings, I have three cases to detail:

1) In United States v. Callahan et. al, Case No. 14-3771, the Sixth Circuit affirmed the conviction and sentences for a case relating to forced labor allegations. The defendants went to trial, were convicted, and filed post-conviction motions. The first issue related to a jurisdictional and statutory interpretation issue. Specifically, the appellants sought relief under Bond v. United States, a recent Supreme Court case regarding the reach of federal statutes. Last year, in United States v. Toviave, the Sixth Circuit extended Bond's holding in a forced labor case, holding Toviave's conduct was not the type of conduct Congress meant to regulate and criminalize. In the instant case, the Sixth Circuit distinguished Toviave, finding the appellants conduct was more consistent with the aims of the statute (18 USC 1589). The Court concluded "a rational trier of fact could conclude that S.E. provided labor or services." p. 12. The Court's conclusion makes it seem that the appellate claim was on a weight of the evidence, or sufficiency claim, but Bond/Toviave go directly to the reach of the statute in a more jurisdictional and federalism standpoint. So, the Court's conclusion leaves us wondering.
There are also some interesting jury instruction issues regarding the kidnapping instruction and the quantum of proof required by the instructions.

2) United States v. Brown, No. 13-1761. This case presents an interesting set of circumstances, as law enforcement used an informant to set up a drug buy from the appellant. This led to Appellant being arrested during a traffic stop. Warrants were subsequently obtained for his house and cell phones, leading to additional evidence. On appeal, Brown challenged the denial of his motions to suppress. The Court discussed the requirement that a search warrant must have a nexus to the evidence sought and the place searched. p. 8. The Court looked at the fact that the affidavit to search the home contained no evidence that Brown sold drugs from the home or used the residence for storing drugs. The court stated it was a "close question" as to whether this met the demands of Fourth Amendment, but because the affidavit contained enough of a connection. The Court relied entirely on the fact Brown's car was registered to his home, and therefore there was a fair probability his home would contain evidence of the crime. p. 12. The court's analysis of the facts is pretty short considering the legal analysis that precedes it; the court's awareness that this is a "close question" should give us some solace (but not Mr. Brown), but it really seems like a case of the tail wagging the dog. Judge Clay writes a dissent on this issue detailing the lack of evidence supporting a just affidavit.
If you want to bone up on your evidence caselaw regarding authentication, there is also a discussion on whether a "drug ledger" was properly admitted. The court held its contents were not hearsay, and an agent involved in the search could testify to authenticate it.

3) McCarley v. Kelly, No. 12-3825. This is a 2254 habeas case. The petitioner was convicted in state court of aggravated murder. McCarley's girlfriend was killed in 1992, and police claimed her 3 year old son identified McCarley. The child was taken to a child psychologist to elicit similar statements days later. Twelve years later, McCarley was indicated. He was found guilty, but an error vacated the jury's first verdict. In 2007, a second jury found him guilty and he was sentenced to life. He proceeded with habeas, which was initially denied by the district court. The Sixth Circuit reversed and ordered a conditional writ. In June, the Supreme Court vacated that opinion based on David v. Ayala. On remand, the district court again denied relief. In the instant appeal, the Sixth Circuit reversed and remanded, again ordering a conditional writ.
Now that all the procedural history is out of the way, here's the merits. The Court held that the admission of the child psychologist's testimony was an unreasonable application of clearly established federal law. Specifically, the testimony violated the confrontation clause and Crawford v. Washington. At trial, one of the lieutenants was permitted to read letters between himself and the psychologist detailing the results of the evaluation of the child. The Court found this was "testimonial" evidence, under Crawford and Davis v. Washington. The Court declared the child psychologist was acting more as a police interrogator than a private counselor, and thus an agent of law enforcement. p. 13. The Court relied on the trial testimony in which law enforcement stated the psychologist's "main reason" for the sessions with the child were to "get information" police could not get from the child to identify the suspect for the investigation. p. 14. The court held this was classic testimonial evidence and therefore the state court unreasonable applied Crawford/Davis. The Court then provided a detailed analysis of the remaining testimony, showing "the importance" of the testimony of the psychologist both in the case-in-chief and closing argument. Because the psychologist's testimony was the "keystone" of the state's case, admission of the admission was not harmless error and therefore required relief.
This case provides a very thorough analysis if you have a habeas issue regarding confrontation.

Tuesday, September 01, 2015

Objections to facts in the PSR: this is not just a child porn case

Bottom line for child porn offenses:

United States v. Cover, 14-3641 holds that the depiction of an 11- or 12-year-old child penetrated orally by an adult penis is not per se a depiction of sadistic or masochistic conduct. There was no evidence in the record that the image was violent or depicted the infliction of physical or psychological pain. The Sixth ruled this holding was not in conflict with United States v. Groenendal, 557 F.3d 419 (6th Cir. 2009) ("penetration of a pre-pubescent child by an adult male constitutes inherently sadistic conduct") because an 11- or 12-year-old child is not necessarily pre-pubescent. The Court also noted, "As sad as it is, there is no denying that many eighth-graders these days voluntarily engage in oral sex, presumably without experiencing pain."

IMPORTANT discussion for anyone filing Shepard-based objections to Presentence Reports regarding ACCA, Career Offender, 2K2.1, etc. etc. etc.:

Remember, a "district court is allowed to accept as true all factual allegations in a presentence report to which the defendant does not object." United States v. Bondurant, 146 F. App'x 762, 763 (6th Cir. 2005) (quoting United States v. Levy, 250 F.3d 1015, 1018 (6th Cir. 2001). In Cover, the Sixth reminds us the district court can rely on facts in the PSR unless there is a "dispute." "To create a factual dispute, a defendant 'must produce some evidence that calls the reliability or correctness of the alleged facts into question' - a burden of production that requires 'more than bare denial.'" Cover at *2(citing United States v. Lang, 333 F.3d 678, 681 (6th Cir. 2003).

It would be insufficient for prosecution or defense to file an objection that merely stated, "defendant/government objects to the information contained in paragraph 30" or "objects... because it is not true." For instance, in the context of information that might ultimately be used in a Shepard analysis, the objection should contain a discussion about how the probation officer preparing the report is allowed to glean information from non-Shepard sources and those have not been deemed reliable enough for a Shepard analysis, as well as an offense-specific discussion of what the Shepard documents do show about a particular offense.

State restoration of rights does NOT restore federal gun rights

In a lengthy opinion today, the Sixth Circuit ruled that even though a FEDERAL felon had their Tennessee state civil rights fully restored - including specifically his right to have a firearm - his federal right to firearms had not been restored. The majority in Walker v. United States, 14-5703 applied the test set out in United States v. Cassidy, 899 F.2d 543, 550 (6th Cir. 1990): in determining whether a person's civil rights were restored, the court should look at the right to vote, the right to sit on a jury, and the right to seek and hold public office.

Mr. Walker's right to seek and hold public office was never lost - even felons can run - so it was never restored. You cannot restore that which you have not lost in the first place.

Mr. Walker's right to sit on a federal jury was assumed for the sake of argument to have been lost and then restored, but one restoration is not enough.

Mr. Walker's right to vote was not restored in any way that directly addressed his personal felony conviction, or the status of all felons, and so does not "count" under this analysis.

So, no restoration and restoration without proper consideration are problematic.

Judge Clay filed a dissent.

The case is very dense and a good read to see just how detailed a statutory interpretation the Sixth is willing to go through.

Monday, August 31, 2015

Evading arrest not a predicate for ACCA

Very quick, unpublished opinion today in United States v. Odell Holder, 14-5666. Case was remanded by the Supreme Court for evaluation under Johnson. Sixth held that evading arrest is not a predicate offense.

Friday, August 21, 2015

Summons Is Not "Intervening Arrest" for Career-Offender Purposes

In United States v. Powell, No. 14-3932 (Aug. 19, 2015), the Sixth Circuit clarified application of the career-offender provision under the Sentencing Guidelines.

Powell argued that the district court erred in classifying him as a career offender because the court mistakenly counted two of his prior convictions separately.

The Guidelines explain that “prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest.” U.S.S.G. § 4A1.2(a)(2). “If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Count any prior sentence covered by (A) or (B) as a single sentence.” Id.

The district court relied on pair of assault convictions t
o sentence Powell as a career offender. But Powell merely received a summons for the first of these charges before being arrested two months later on the second charge, and he was sentenced for both crimes on the same day. The Sixth Circuit sided with an en banc Ninth Circuit decision, and dicta from other circuits, to decide that an intervening summons or citation does not constitute “an intervening arrest” under § 4A1.2(a)(2). The Sixth Circuit declined to follow a contrary decision from the Seventh Circuit.

On another important note, Powell had waived most of his appellate rights as part of his plea agreement, but preserved his ability to challenge the determination of his criminal-history category. This exception, the Sixth Circuit decided, allowed an appellate challenge to the career-offender determination, even though it affected both Powell's criminal history and offense level. Even more interesting, the court's holding ultimately did not change Powell's criminal history category: his score dropped from 20 to 15, leaving him in
 category VI. But the Sixth Circuit nonetheless remanded because of the change in offense level.

Tuesday, August 11, 2015

"Legal Mail" to Correctional Facility Includes Mail From Prospective Attorney

Today's sole published opinion, ACLU Fund of Michigan v. County of Livingston is not a criminal case.  But it seemed appropriate to blog about it here because of the interest it may hold for criminal practitioners in the Sixth Circuit.

Here are the facts:  the Livingston County (MI) jail has a very restrictive mail policy.  Anything that's not legal mail has to be on a postcard.  The jail administrator in charge of determining what constitutes legal mail thinks that only mail from a court and mail from an attorney to a current client constitutes legal mail.  So the ACLU sent several letters to Livingston County inmates offering to help them challenge the county's policy.  The letters were in enveloped marked "legal mail" and were signed by an attorney.  But since Livingston County didn't consider them to be "legal mail," they were never delivered.  The ACLU filed suit, seeking injunctive relief.  The district court granted a preliminary injunction, and the defendants sought interlocutory review.

In its opinion, the court (Judges Moore, Siler, and Stranch comprised the panel, with Judge Moore writing) held that the jail's overly restrictive policy likely constituted violations of both the First and Fourteenth Amendments.  The court's discussion at the bottom of page 10 of the opinion is particularly instructive:  the court notes that legal services organizations like the ACLU must be able to send confidential communication prior to initiating legal action, and that both the inmate and the attorney have a strong interest in keeping communications confidential during the investigate stages of a legal matter.  That should be particularly helpful for attorneys considering taking on postconviction or habeas matters on behalf of an inmate.
the A

Sunday, August 09, 2015

Crimes of Violence Determined Under Shepard

The Sixth Circuit determined that Tennessee’s aggravated burglary statute is divisible and, further, may constitute a “crime of violence.” In United States v. Ozier, the Court used the modified categorical approach to determine whether the defendant committed a breed of aggravated burglary that constitutes a crime of violence under Section 4B1.2(a)(2) of the United States Sentencing Guidelines. The decision demonstrates the continued viability of Descamps and Shepard when determining career offender status (and potentially the ACCA) following Johnsonv. United States.

In Ozier, the District Court concluded that Ozier had committed one of the enumerated offenses (burglary of a dwelling) in Section 4B1.2(a)(2).  In conducting its analysis, the Sixth Circuit first determined (under Descamps) that Tennessee’s aggravated burglary statute is divisible. Having established that the statute is divisible, the Court then analyzed the plea colloquy underlying the state conviction (under Shepard), which confirmed the District Court’s conclusion. Because the underlying crime fell within the enumerated offenses, the Court declined to consider whether Johnson invalidated an analysis under the residual clause.

The case is United States v. Ozier, 14-6439 (6th Cir. August 5, 2015).