Thursday, February 19, 2015

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

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

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

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

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

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

Wednesday, February 18, 2015

Is leniency "substantively unreasonable"?

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

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

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

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

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

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

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

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

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

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

Monday, February 09, 2015

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

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

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

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

Tuesday, January 06, 2015

Sixth rules 922(g)(4) unconstitutional

Judges Boggs, Siler, and Gibbons all agree, for varying reasons, that 18 U.S.C. § 922(g)(4) is unconstitutional. Section (g)(4) is the one that prohibits people who have a prior mental health commitment from possessing firearms. The case is Tyler v. Hillsdale County Sheriff's Department, No. 13-1876. You can read it here. Lyle Denniston over at SCOTUSblog is far more articulate than I and discusses the case here.

While we do not see 922(g)(4) much in practice, the "strict scrutiny" test the Sixth applied to the statute is important and could be used in other gun-related settings.

Monday, January 05, 2015

New Child Porn decision with varying opinions

On Friday, January 2, 2015, the court released its first decision of the new year, United States v. Walters.   Although the case on one hand is uninteresting (the Court upheld the 151 month sentence and all imposed Guidelines enhancements), it is worth reviewing to show how the individual judges are struggling with CP sentences in general.

Judge Merritt wrote a strong dissent in the case, arguing that the 151 month sentence was "out of proportion" to the offense and violated the Eighth Amendment.  Judge Merritt cited to the Sentencing Commission and the DOJ's stances that sentences for these type of cases were outmoded, and noted that "[i]t seems obvious that nothing is going to soon change the injustices such as this one that are going on every day in the federal courts—unless the courts themselves find a solution that at least ameliorates the problem for the time being."

Judge White concurred in the decision to uphold the sentence imposed, but wrote a separate concurring opinion to voice her concerns.  In her opinion, she stated  "The appropriate judicial response in situations such as this one is not for appellate courts to reduce Guidelines sentences as a matter of course, but rather, for sentencing judges to recognize that Guidelines based on the Protect Act should be carefully scrutinized. Unfortunately, as the dissent observes, Walters’ counsel did not bring to the district court’s attention, or argue on appeal, that the Commission considers the sentence recommended here to be excessive. In the context of a sentencing proceeding in a child pornography case, competent counsel should be expected to bring to the district court’s attention that the Guidelines do not, as in other contexts, reflect the presumed superior expertise and breadth of information of the Commission, and in fact are contrary to the Commission’s considered judgment."  Thus, according to Judge White at least, it may be ineffective assistance for defense counsel to not challenge a CP Guidelines ranges as excessive.

CP sentencings are becoming more and more difficult for district court judges.  It seems that the Sixth Circuit is divided into numerous camps on what is appropriate.  The spectrum is varied, and leaves district court's squarely in the middle to figure out what is appropriate.

Friday, October 24, 2014

On issue preservation and non-guideline sentences

In United States v. Sherer, et. al (found here), a bank robbery case, the Sixth Circuit recently reminded folks how to properly preserve several issues, and also more extensively addressed variances based on mathematical accidents within the guidelines.

First, issue preservation:

- A motion to dismiss under the Speedy Trial Act cannot be filed until the Act has been filed. That is, the government has 70 days, post-indictment, to bring a defendant to trial. The motion cannot be filed until at least day 71. This is partly because filing the motion stops the speedy trial clock and it does not start again until after the court has ruled on the motion.

- A sufficiency of the evidence claim will be reviewed for plain error unless counsel moves for a judgment of acquittal at the end of trial. This feels odd, especially if you have not put on a defense. But you must move for it twice: at the end of the government's evidence, and then again at the close of the case. To win on plain error review, the "record must be devoid of evidence pointing to guilt."

- Admissibility of evidence arguments will be reviewed for plain error unless counsel objects to its admission at trial. To win on plain error review, a defendant must "show that the trial would have turned out differently but for the" objectionable evidence.

Variances based on mathematical accidents within the guidelines:

Mr. Sherer had robbed banks before the instant offense. A little over a decade before, he had robbed five banks and pled guilty to robbing two of them. Because he was sentenced on those pleas on the same day, the two sentences merged. Because they merged, they were counted as one offense rather than two, which would have qualified Mr. Sherer for Career Offender status. The district court used the Career Offender guideline anyway, noting Mr. Sherer had escaped the impact of the Career Offender range "simply by... accident or happenstance." The district court also noted Mr. Sherer had done this new robbery eight months after serving 10 years in jail for the last bank robberies and was at extremely high risk to recidivate. The Sixth Circuit discussed other guideline cliffs - for instance, being one dollar above a loss cutoff - and noted courts were free to recognize those cliffs and adjust sentences accordingly, provided they adequately explained their decision.

Tuesday, October 14, 2014

Court limits "use" a firearm in connection with another felony

In United States v. Norris, the Court remanded for resentencing with instructions to eliminate a enhancement for "using" a firearm in connection with another felony offense.  In Norris, the defendant plead guilty to selling a firearm to a prohibited person.  At some point after the sale, he called the buyer and told them to get rid of the firearm because it was evidence in a murder investigation.  But the buyer no longer had the firearm.

The Court found that this conduct could not meet the definition of "use".  The Court noted that Norris did not have authority or control over the buyer, and that the buyer did not possess the firearm; therefore, Norris's advice to the buyer could not be considered use.  Congrats to AFPD Laura Davis!!!