Tuesday, April 15, 2014

Policy and Perjury and Leadership, oh my!

Last week, the Sixth Circuit ruled in United States v. Kamper and Head, 12-5167 and 12-5800. The cases concerned an MDMA distribution conspiracy. Kamper was the "administrator" of the conspiracy and Head, a chemist, was "in charge of manufacturing." The conspiracy was Kamper's idea and he provided the start up funds. Head had access to chemicals and knew how to make the drug. Other co-conspirators were involved.

Policy disagreements
Kamper pled guilty. He argued at sentencing (well, pre-sentencing and at sentencing) that the MDMA-to-marijuana ratio in the guidelines was based on discredited science. He asked the district court to select a new ratio, or to vary from the Guidelines. The district court concluded "that the Sentencing Commission is in a better position than this Court to take into account all of the various value judgments involved in adopting a particular guideline." The district court provided other rationales as to why it could not reject the ratio established in the Guidelines.

The Sixth Circuit ruled the district court was wrong. It ruled "district judges may exercise their discretion to reject Guidelines ratios because of policy disagreements in all aspects of the Guidelines." It clarified its ruling in Bistline: "the courts have the authority to reject the Guidelines range selected by Congress," provided they articulate their refutation of the particular Guideline. Most of all, "The district court must not rely on the Guidelines for reasons that Kimbrough rejected, such as institutional competence, deference to Congress, or the risk that other judges will set different ratios."

The Sixth decided the district court was wrong, but had otherwise sufficiently justified Kamper's sentence as to not warrant remanding for a new sentencing hearing.

Head went to trial. He testified on his own behalf and "flatly stated that he had never produced MDMA." He had "no idea" how the stuff was made. The jury convicted him, and his presentence report recommended a two-level obstruction-of-justice enhancement for the perjury. The district court applied the enhancement, over Head's objection.

The Sixth Circuit reversed this decision. District courts must go through a two-part evaluation: (1) identify the portions of the testimony that are perjurious, and (2) make a specific finding for each element of perjury. Perjury, in turn, has three elements: (1) false statement under oath (2) concerning a material matter (3) with the willful intent to provide false testimony. The district court ruled the statements were false, but failed to make factual findings about the other two elements of perjury: materiality of the matter or Head's intent.

Head also objected to the three-point bump for being a manager or supervisor of the conspiracy. The district court ruled the enhancement applied because each of the three co-conspirators was "jointly the manager or supervisor of the entire operation."

The Sixth Circuit reversed. To qualify for the enhancement, a defendants "must have managed or supervised one or more other participants and not merely the criminal scheme." So the district court misapplied the law when it ruled the three co-defendants were "jointly the manager or supervisor of the entire operation." The Sixth Circuit acknowledged "the record arguably demonstrates that Head was responsible for directing other individuals in menial tasks" but asserted the district court erred when it did not make a factual finding that Head managed or supervised other individuals involved in the conspiracy.

Friday, March 21, 2014

Holder Memo on Appeal

United States v. Ivory, No. 13-5962 (6th Cir. Mar. 21, 2014) (unpublished), is a fairly unremarkable per curiam opinion (Judges Boggs, Siler, and Gibbons).

But I'm noting it here b/c the defendant relied on the Holder memo to argue for a lower sentence.  The COA rejected the argument.

Crack case.  Defendant was a career offender.  GLs 151 to 188.  D asked for a 60-month sentence (over-represented criminal history, just a street-level dealer).  Dist ct granted downward variance and sentenced D to 130 months of imprisonment. 

COA says that "[g]iven that we afford a within-guidelines sentence a rebuttable presumption of substantive reasonableness, [the defendant's] burden of demonstrating that his below-guidelines sentence 'is unreasonably long is even more demanding.'"   

COA stressed that the Holder memo on charging mand mins and recidivist enhancements is just a policy statement.  Confers no rights.  Plus, D was not subject to a mand min, was already convicted at the time, and not subject to a "recidivist enhancement" (statutory one, as he was a career offender).  Also said that he was not a candidate for the policy b/c of his lengthy criminal history.    

Sentence affirmed. 

Seventh Circuit on GPS

Following up on the post below, I think it is worth noting that the Seventh Circuit remains undecided on the GPS good-faith issue.  United States v. Brown, No. 11-1565, 2014 U.S. App. LEXIS 4076, at *7 (7th Cir. Mar. 4, 2014).

United States v. Katzin, 732 F.3d 187 (3d Cir. 2013), the once helpful Third Circuit case, is up for rehearing en banc on May 28, 2014. 

I think we can expect to hear of cert petitions going up. . . .  We just have to stay tuned.   

Friday, March 14, 2014

No suppression of use of GPS before Jones

Keeping in line with the Supreme Court's decision in Davis v. United States, 131 S.Ct. 2419 (2011), the Court today held that, while use of a GPS device violated the Fourth Amendment, exclusion of the evidence was not an appropriate remedy, as at the time of the use of the device, the uncontradicted case law allowed for such use.  United States v. Fisher, 13-1623

At the time the police placed the tracking device on Fisher’s vehicle, the training and guidance provided to these officers by various police agencies and prosecutors all indicated that such conduct was consistent with the Constitution; no circuit authority had indicated that the use of a GPS tracker was unconstitutional, and three circuits had held that such conduct was lawful; the relevant Supreme Court case law had indicated such a practice was lawful; and our precedent also provided binding authority permitting such conduct. These are not the type of circumstances that warrant the application of the “bitter pill” that is the exclusionary rule. As it is apparent that the police acted in reasonable, good-faith reliance and that their conduct was lawful, the exclusionary rule does not apply.

Thursday, February 20, 2014

Pinholster and Habeas Evidentiary Hearings

There remains a bit of confusion over whether district courts have the authority to conduct evidentiary hearings in Section 2254 habeas corpus cases in which the state courts have previously adjudicated a petitioner's claim "on the merits."  While not settling the matter for good, two important Sixth Circuit decisions this week have provided a bit of clarity.

Historically, habeas corpus has allowed federal courts to conduct de novo review of federal constitutional claims arising out of state court convictions. This included wide latitude to conduct evidentiary hearings. Much of this changed with the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). 

The confusion arises out of the interplay between two AEDPA provisions in particular. The first, Section 2254(d), provides (crudely speaking) that only "unreasonable" state court merits decisions are reviewable in habeas corpus proceedings. The second, Section 2254(e), allows federal evidentiary hearings so long as the petitioner was diligent in attempting to develop his facts while litigating his claim in the state courts.  Williams v. Taylor, 529 U.S. 420, 432 (2000). The issue arises when a federal court is tasked with assessing the "reasonableness" of a state court decisions based on a factual record that the state court itself never considered.
For years, many courts reconciled these provisions by concluding that Section 2254(d)'s deferential standard simply does not apply where the federal court is assessing a more complete factual record. See, e.g., Winston v. Kelly, 592 F.3d 535, 555-556 (4th Cir. 2010) ("judgment on a materially incomplete record is not an adjudication on the merits"). Other courts, such as the Sixth Circuit, held that some form of "modified AEDPA deference" applies. Hawkins v. Coyle, 547 F.3d 540, 547 (6th Cir. 2008).

The Supreme Court rejected both approaches in Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011), holding that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." The Court explained,

Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that "resulted in" a decision that was contrary to, or "involved" an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time -- i.e., the record before the state court.

Because the Court in Pinholster declined to overrule Williams, evidentiary hearings remain appropriate in habeas corpus proceedings so long as the petitioner tried to develop his evidence in state court. But because Section 2254(d) precludes consideration of newly-developed evidence, it is not obvious what purpose those hearings could actually serve.

There are actually several purposes, as Justice Breyer’s concurring opinion in Pinholster explains. These include the following:
§ 2254(d)(1) does not leave AEDPA's hearing section, § 2254(e), without work to do. An offender . . . must first present a claim (including his evidence) to the state courts. If the state courts reject the claim, then a federal habeas court may review that rejection on the basis of the materials considered by the state court. If the federal habeas court finds that the state-court decision fails (d)'s test . . . , then an (e) hearing may be needed.

For example, if the state-court rejection assumed the habeas petitioner’s facts (deciding that, even if those facts were true, federal law was not violated), then (after finding the state court wrong on a (d) ground) an (e) hearing might be needed to determine whether the facts alleged were indeed true.

Under Justice Breyer's reasoning, Pinholster created a two-step review process for any case in which the state court denied a prisoner the opportunity to prove the facts supporting his claim, and instead ruled solely on the basis of his factual allegations. First, a petitioner must show that the state court decision was unreasonable under Section 2254(d) on the basis of the evidence (or allegations) before the state court. Second, if the petitioner can satisfy Section 2254(d), he must prove as a factual matter -- and under a de novo standard of review -- that he is entitled to habeas corpus relief under Section 2254(a), i.e., that he "is in custody in violation of the Constitution or laws or treaties of the United States."

Several courts have adopted this interpretation. The Seventh Circuit, for example, has found that "[a]lthough a state court decision that stems from an unreasonable application of federal law will usually meet § 2254(a)’s requirement . . . [the federal] court will engage in de novo review after a finding of unreasonableness to answer the 2554(a) question as if the state court never reached the merits." Quintana v. Chandler, 723 F.3d 849, 852 (7th Cir. 2013). See also Newman v. Harrington, 726 F.3d 921, 932 (7th Cir. 2013) (because "the state court’s decision denying post-conviction relief violated § 2254(d)[]," it was appropriate to consider de novo "the evidence presented at the federal evidentiary hearing"); Stitts v. Wilson, 713 F.3d 887, 895-86 (7th Cir. 2013) ("[t]his procedure is not inconsistent with . . . Pinholster . . . . We do not remand for an evidentiary hearing to determine whether the state court unreasonably applied Strickland pursuant to § 2254(d)(1); we have already found that it did, without going outside the state court record. Instead, we remand to reach an issue that the state court never addressed . . . .").

The Fifth Circuit adopted a similar approach in Smith v. Cain, 708 F.3d 628, 631 (5th Cir. 2013), explaining that "Pinholster's restriction does not bar the federal evidentiary hearing conducted in this case because the district court first concluded, solely on the basis of the state court record, that the state courts committed legal error, as required under 28 U.S.C. § 2254(d)(1) . . . ." See also Morris v. Thaler, 425 Fed. Appx. 415 (5th Cir. 2011) ("a hearing is necessary not to evaluate the state court's decision, but to determine whether Morris's allegations are true. This is the precise scenario contemplated by Justice Breyer . . . .").

But not the Sixth Circuit. In fact, in Ballinger v. Prelesnik, 709 F.3d 558, 561 (6th Cir. 2013) (discussed previously on this blog), the court seemed to say the opposite -- that under Pinholster, "district courts are precluded from conducting evidentiary hearings to supplement existing state court records when a state court has issued a decision on the merits with respect to the claim at issue." Not only was this language dicta (the petitioner did not satisfy Section 2254(d) based on the state court record alone, so there was no need to consider whether he otherwise would have been entitled to an evidentiary hearing), but it was also wrong, for the reasons explained by Justice Breyer in Pinholster.

Two decisions this week appear to represent an appropriate retreat from Ballinger's misguided discussion of Pinholster. First, in Parks v. Klee, No. 11-2531, a per curium unpublished decision by Judges Moore, Gibbons, and Sutton, the panel remanded the case for resolution of a Batson/Strickland claim in spite of a prior state court merits adjudication. Parks involved a claim that trial counsel was ineffective for failing to raise a Batson challenge to the Kent County Prosecutor's improper dismissal of all four African-American jurors. The petitioner supported this claim with affidavits and detailed factual allegations, and asked repeatedly for an evidentiary hearing. The state courts rejected this claim on the merits, and on the basis of these allegations alone. In federal court, the petitioner maintained that the state court decision was unreasonable, but conceded that the existing record did not entitle him to relief. Instead, he argued, a de novo federal evidentiary hearing was necessary in order to prove the truth of his allegations -- i.e., to prove that a Batson challenge would have been successful.  The Michigan Attorney General argued that a remand would be pointless because the "plain language of Pinholster and Ballinger preclude an evidentiary in the district court." The court apparently disagreed. While its four-paragraph opinion does not discuss these issues, it necessarily rests on the conclusion that a hearing would be appropriate if the state court decision was unreasonable and essential facutal questions remain unresolved.

Second, in King v. Berghuis, No. 12-1486, Judge Keith issued a dissenting opinion which (unlike the majority) reached the issue of whether an evidentiary hearing was appropriate to resolve the petitioner's claim. Judge Keith strongly endorsed the view espoused by Justice Breyer, finding that a federal evidentiary hearing was both appropriate and necessary in order to resolve "[l]egitimate issues" of fact. He explained, "While I am satisfied that the record is sufficient to make an assessment as to whether the state court judge unreasonably applied [federal law], I am not satisfied that it is sufficient to reach a conclusion with respect to the merits of King's due process claim."

While no Sixth Circuit case has yet said definitively whether Ballinger's dicta is the law in this Circuit, there appears to be a growing recognition that federal evidentiary hearings will remain an important component of the adjudication of habeas corpus cases -- particularly those in which the state courts have reached the merits of a claim without allowing for necessary factual development.

Friday, February 14, 2014

United States v. Duval, Nos. 12-2338/2339 (6th Cir. Feb. 7, 2014) (for publication).

Med MJ issues.

Panel of Judges Cole, Gilman, Donald. 

* Was compliance with Mich Med MJ Act (MMMA) relevant to search-warrant application?  COA said no.
* Did the indictment allege a federal crime even though one of the defendants was a registered "caregiver" under the MMMA and qualified for the "practitioner exception" under 21 U.S.C. 802(21)?  COA said yes.
* COA affirmed district court.

* Defendants said search warrant invalid b/c deputy omitted defendants' status as registered patients and caregivers under Mich law.  Gov said issue waived b/c not raised in dist ct.  COA rejected gov's contention---defense counsel probed issue sufficiently in dist ct, though not quite explicitly. 
* Deputy did not have "clear and uncontroverted evidence" that defendants were complying fully with MMMA at time of search-warrant application.  Actually seemed like the defendants were not complying, given what officer knew.  The deputy did not know another officer had advised the defendants earlier about complying with the MMMA.  So failing to include that info in warrant application could not be deliberate.  Info not imputed here.  No evidence the officers communicated.
* Application for warrant was to state magistrate, rather than the federal magistrate judge, despite fact deputy was detailed to a federal agency.  But deputy's position gave him flexibility to choose whether investigation would go state or federal.   
* No error in failing to suppress evidence. 
* Defendants waived and forfeited chance to challenge sufficiency of indictment.  Issue raised first time on appeal.  Won't fly unless the alleged defect is jurisdictional.  No jurisdictional defect here.  COA cited United States v. Marcinkewciz, No. 12-2441 (6th Cir. Oct. 29, 2013).   

Thursday, January 30, 2014

Sixth Circuit working on video conference arguments

I was up at the Sixth Circuit for argument on January 28. I noticed a big video screen to the right of the bench, another smaller one below the bench, and a camera high above the bench pointed at the lectern. I asked the court staff about them. She pointed out two big screens over the doors (one for each side of argument) and a camera above those. The Sixth Circuit is working towards being able to host oral argument via video conference. Any combination of judges and attorneys could, in theory, appear via a video link. It is hoped this would be a better option than telephone conference - people would be able to see each other. They've tried a few arguments this way, to mixed success.

One judge at my argument appeared telephonically. Weather in Michigan was terrible, and temperatures in Cincinnati were below zero. I don't blame him. I wondered if I would rather be able to see his face - would he or I be more engaged? On the other hand, I like the idea of a judge being able to participate in argument from the comfort of their own home (in their jammies or favorite warm outfit) when inclement weather strikes.

What do y'all think?

Tuesday, December 31, 2013

The United States Attorney for the Northern District of Ohio is a Sentencing Court

Happy New Year.

A few months ago, I wrote about how The Sixth Circuit is a Sentencing Court in cases involving the possession of child pornography. In addition to the unfortunate case of Richard Bistline, I catalogued several examples of Sixth Circuit panels requiring that this crime be punished by a prison sentence, even though Congress itself saw fit to impose no mandatory minimum, and in spite of several district courts’ well-reasoned decisions to impose non-prison sentences.

In truth, however, no judge—whether on a district or appellate court—has as much power to sentence a criminal as the federal prosecutor who charged him. In most cases, real federal sentencing takes place before a grand jury has even returned an indictment.

The prosecutors who charged Richard Bistline faced a critical choice at the beginning of their prosecution: they could charge him with "possession" of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), or they could charge him with "receipt" of child pornography in violation of 18 U.S.C. § 2252(a)(2). These two crimes prohibit "virtually identical conduct," since there is "no principled distinction between possessing and receiving child pornography." United States v. Robinson, 669 F.3d 767, 776 n.2 (6th Cir. 2012). The only meaningful difference between them is the punishment. Whereas "possession" carries no mandatory minimum, "receipt" requires a five year prison sentence. Federal prosecutors wield virtually unreviewable discretion to say who must go to prison for five years, regardless of what any judge might later think about the appropriateness of a prison sentence.

In the Bistline case, the prosecutors charged possession—perhaps because of the same mitigating factors that ultimately led Judge Graham to impose a non-prison sentence, including old age, frailty, and low risk of re-offending. Because of that charging decision, Mr. Bistline was allowed to ask for a non-prison sentence (and receive one, twice, until the Sixth Circuit intervened).

Other defendants have not been so lucky. Take the extremely troubling case of United States v. Dylan Marshall, Sixth Cir. No. 12-3805 (Nov. 21, 2013).

At the "chronological age" of twenty, Dylan Marshall was arrested and charged with receipt, rather than possession, of child pornography. It is not clear why. From his Sixth Circuit brief (record citations omitted):

Dylan was born with Human Growth Hormone Deficiency (HGHD), an extremely rare condition that puts his case in a distinct context. During the Sentencing Hearing . . . , a clinical psychologist who evaluated Dylan[] emphasized the "unique situation here" when he testified, "I had never, in the 5,000 forensic evaluations I’ve done, had an individual who had human growth hormone deficiency." Because of this rare disorder, Dylan was literally unable to grow up. In all meaningful ways—physically, psychologically, socially, and sexually—Dylan was a juvenile when he possessed or received child pornography.
Regarding his cognitive development, the district court found Dylan "had the mental capacity of a minor both at the time the crime was committed and at the time of sentencing." [The] clinical psychologist who evaluated Dylan[] found that he had . . . a mental age of fifteen and a half years. . . . A licensed clinical supervisor, Maralyn Logsdon, observed that Dylan had "multiple psychological" disorders, including "a dysthymic disorder and a personality disorder." These psychological conditions went untreated prior to Dylan’s arrest. . . .
Because of this extreme social isolation and his late entry into puberty, Dylan has had little sexual experience. One of his few sexual experiences was abuse by an older male cousin. Dylan was anally raped on five or six occasions when he was twelve years old. Dylan had not received mental health treatment for this abuse prior to this case.

Dylan pled as charged to receipt of child pornography and was sentenced accordingly. To the prosecutor who charged him, this probably looked like justice. But to Jack Zouhary, the district judge who had the unenviable (and purely ministerial) task of imposing the prosecutor’s chosen sentence, it looked like nothing of the sort.

After conducting two separate sentencing hearings, hearing live testimony, and allowing the development of a full record, Judge Zouhary found that the "uncontroverted evidence" demonstrates that "at the time of the crime Defendant was, and should be characterized for sentencing as, a developmentally immature teenager lacking the ability to appreciate the illegality of child pornography and to control his viewing of easily accessible internet content."

Given these extraordinary circumstances, Judge Zouhary found that a sentence of five years would be "excessive, unjust, and greater than necessary." He explained that the "imposition of excessive prison time will only destroy an opportunity for [Dylan] to live a constructive life," particularly given the safety concerns facing somebody like Dylan in an adult prison.

But his hands were tied. The prosecutor had already sentenced Dylan to five years in prison.  Judge Zouhary had no choice but to impose a sentence that he firmly believed to be unlawful. In doing so, however, he literally begged the Sixth Circuit to step in and fix this injustice:

It is my hope that I will get relief from the Court of Appeals. It will not be me that is unable to sleep at night because this defendant must serve five years. It will have to be because three other people or more have reviewed this case and found that to be so. . . . I want to thank everyone for their efforts in what has been probably the most difficult case I’ve had to handle since being on the bench.

Dylan Marshall would get no such relief. The Sixth Circuit predictably rejected his as-applied challenge to the five-year mandatory minimum based on the Eighth Amendment and Miller v. Alabama, 132 S. Ct. 2455 (2012), which prohibits mandatory life sentences for juveniles. As Judge McKeague explained for the majority, the Eighth Amendment analysis draws a bright line at the chronological age of eighteen:

Marshall is at the very most an immature adult. An immature adult is not a juvenile. Regardless of the source of the immaturity, an immature adult is still an adult. Because Marshall is not a juvenile, he does not qualify for the Eighth Amendment protections accorded to juveniles.

Judge Lawson disagreed with the majority’s refusal to allow the consideration of any "developmental features" which might render somebody a juvenile for Eighth Amendment purposes. But he ultimately concurred in the judgment because the five-year sentence was not "grossly disproportionate to the crime."

While that could have been the end of the case, Judge Lawson took the opportunity to say more—about the prosecutor. And thank God somebody finally did.

A district judge himself, Judge Lawson agreed with the Judge Zouhary’s finding that Dylan’s sentence is "excessive," "unjust," and "almost certainly [] greater than necessary to achieve any rational sentencing objectives."

He said that this case is an "injustice" because of "the government’s decision to charge . . . receipt rather than possession," a decision which was "woefully uninformed and even irresponsible."

In spite of these grievances, however, Judge Lawson acknowledged that "defendants like Dylan Marshall are out of luck." In our system of mandatory minimum sentencing, federal prosecutors’ unfettered charging discretion amounts to unfettered sentencing discretion. Justice be damned.

Kudos to Judge Zouhary and Judge Lawson for speaking up about this injustice, particularly given their acknowledged inability to do anything at all to fix it.

And shame on the Government for its inexplicable handling of this case—from its "irresponsible" charging decision to its failure to correct the error after the scope of Dylan's rare condition became clear. 

But the Government (and only the Government) can still make things right.  In the new year, I hope the United States Attorney for the Northern District of Ohio will remember his oath to seek justice.  I hope he will fix this case.