Monday, February 13, 2017

The Right to Counsel of Choice

   In United States v. Powell, the Sixth Circuit held the district court abused its discretion by allowing one but not both of defendant Earnest Proge's attorneys to withdraw as counsel. Mr. Proge raised his dissatisfaction with counsel during the final pretrial conference. He took issue with what he perceived to be his attorneys' efforts to force him to enter into a plea agreement. Subsequently, counsel briefed its request to withdraw as counsel.

While the district court concluded that Mr. Proge was free to reject his counsel's advice and so there was no breakdown in the attorney-client relationship, the Sixth Circuit held the record supported a different conclusion. Mr. Proge's attorneys told him they had not been retained to represent him at trial, were not prepared or equipped for trial, and would not represent him if he chose to go to trial. Writing for the majority, Judge Guy held, "The conflict between Proge and his attorneys resulted in a complete lack of communication that weighs strongly in his favor."

The Sixth Circuit also noted the need to balance the defendant's right to counsel of choice with the public's interest in the efficient administration of justice. Because the district court put off making an inquiry, despite a specific request for new counsel, it was partly responsible for the short time between the denial of Mr. Proge's request and trial. In holding that Mr. Proge's Sixth Amendment rights were violated, the Sixth Circuit relied on the timely initial request for new counsel, the adequate but delayed inquiry of the district court, and the complete breakdown in the attorney-client relationship.

Judge Moore wrote a separate opinion, concurring in part and dissenting in part, in which she asserted co-defendant Carlos Powell should also have obtained relief from the district court's denial of his Faretta motion seeking self-representation. She also concluded that Mr. Proge's conflict with his counsel, absent any other factors, "should have impelled the district court to grant Proge's request to substitute counsel.

Sunday, February 05, 2017

Court Affirms Admission of "Prior Bad Acts" Against Sexual Assault Defendant.

In my blogs, I frequently try to write a humorous quip about the defendant, defense counsel, or the courts.  I can find nothing, however, humorous in the facts found in United States v. LaVictor.

In this case, the defendant, LaVictor, and his girlfriend, returned to LaVictor's mother's house on the Sault Ste. Marie Tribe of Chippewa Indians Reservation after a night of heavy drinking.  Early the following morning, LaVictor contacted emergency services and told them his girlfriend was bleeding from her vagina.  Subsequent medical examinations revealed evidence of sexual assault, which the girlfriend confirmed in her statements to the authorities.  The girlfriend subsequently repeated her allegations before a federal grand jury, which returned a five-count indictment charging LaVictor with: (1) attempted sexual abuse in violation of 18 U.S.C. § 2242(2)(B); (2) aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1); (3) assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6); and (4) domestic assault by a habitual offender in violation of 18 U.S.C. § 117.

After filing various pre-trial motions, LaVictor proceeded to trial.  During the trial, the Government called LaVictor's girlfriend as a witness.  The girlfriend subsequently recanted her testimony and testified that she consented to sex with LaVictor, even if he was "rough."  Over LaVictor's objection, the district court admitted the girlfriend's grand jury testimony as evidence of her prior inconsistent statements.  Additionally, after conducting a Daubert hearing, the district court permitted the Government to offer the testimony of an expert witness to testify about victim recantation.  As a final blow to LaVictor's defense, the court permitted the Government to introduce several of LaVictor's former girlfriends, who testified about uncharged episodes of prior sexual abuse.  It took the jury less than three hours to return guilty verdicts on all six counts.

LaVictor raised several arguments in favor of a reversal on appeal, including, among other things, the district court's decision to admit prior bad act evidence under FRE 404(b) and the entire grand jury transcript.  In a lengthy published opinion, the Court affirmed LaVictor's conviction.

Of the many interesting holdings in the Court's opinion, it first dealt with the testimony of the recantation expert.  Although it prior pronouncements on this issued had "been more muted," the Court held that expert testimony regarding a domestic violence victim's propensity to recant was relevant and not unduly prejudicial in LaVictor's case.

The Court then addressed the district court's decision to permit three of LaVictor's previous girlfriends to testify that they had previously been sexually assaulted by him, although they never reported the incidents to the police, and the police never charged him with a crime.  Although the Court acknowledged such testimony is generally prejudicial in a sexual assault case, it held that the district court did not err in concluding the evidence was probative to show LaVictor's intent to sexually assault his then-girlfriend and that the assault was not an accident or mistake.  The Court further held that the probative nature of the testimony outweighed the prejudice it caused under FRE 403.  Finally, and perhaps most importantly, the Court concluded that even if the district court had erred, any error in admitting the testimony was harmless in that it would not have affected the jury's verdict.

As a final note, the Court made an interesting holding regarding the definition of an "intimate partner" under the habitual domestic assault statute, 18 U.S.C § 117.  On appeal, LaVictor argued that the statute did not apply to him because he was not living with his girlfriend at the time he committed the sexual assault.  Noting that the Sixth Circuit had not yet defined the term "intimate partner," the Court examined similar language found in 18 U.S.C. § 2266 -- a statute requiring states to recognize protection orders issued in other states -- and concluded that the term applied to LaVictor and his girlfriend since they had previously been engaged in a lengthy, romantic relationship.

While the facts of this case are sad and represent an all too common occurrence, the Court's lengthy opinion provides a great road map of the many issues counsel might face in defending a sexual assault case in Federal court.  Counsel engaged in such a case should review this decision.

Thursday, February 02, 2017

Untimely Pre-Trial Motions: Clarification for "Unwary Counsel"

The Court has had a relatively quiet week with few published opinions.  One opinion, however, is worth a brief discussion.  In United States v. Trujillo-Molina, the defendant, who had been indicted for possessing a firearm while being illegally and unlawfully present in the United States, filed a motion to dismiss the indictment arguing that he was not, in fact, illegal because he had received relief from removal under ICE's Deferred Action for Childhood Arrivals ("DACA") program.  The problem, however, was that he filed the motion one month after the district court's pre-trial motions deadline.  The District Court subsequently denied the motion as untimely pursuant to Fed. R. Crim. P. 12.  

On appeal, the Court held, in an unpublished opinion, that the District Court did not abuse its discretion in denying the defendant's motion to dismiss as untimely.  While the Court's main holding was no surprise, the Court attempted to clarify, in a footnote, a point that it worried would cause confusion for "unwary counsel."  In particular, the Court reiterated that a party who fails to make a timely motion pursuant to Rule 12(b)(3) does not necessarily waive the issue he failed to raise in the motion.  Instead, the Court will review the issue for plain error.  Thus, the failure to timely file a timely pre-trial motion does not necessarily foreclose appellate review of the issue, although a defendant will have a difficult time in any appeal challenging the district court's denial of his pre-trial motion.

Sunday, January 29, 2017

Identity Theft: Up in the Air?

The line between mere fraud and identity theft is murky. The Sixth Circuit has repeatedly found that the use of another person’s signature does not constitute identity theft so long as the identity of that other person is not purloined. While this holding is both logical and guards against co-extensive reach of the fraud and identity theft statutes, it arguably created a circuit split. Now, in UnitedStates v. White, the Sixth Circuit has narrowed what “use” of a “means of identification” under Section 1028A is.

Ms. White was a travel agent particularly skilled at obtaining low cost flights for her clients. One of her most effective tactics, unfortunately, was to misrepresent the ticketed passenger’s military status. The airlines had caught her before and revoked her agency’s accreditation. But she found work as a subcontractor for another agency. Once she began, the military status discounts of that agency’s customers increased exponentially. Once confronted, White doubled down by creating false military identification cards to support the discounts. There is no crime so bad that a cover-up can’t make worse.

And it was just that cover-up that the Government asked the Court to focus on. Instead of focusing on the use of a name when obtaining the discounted fares, the Sixth Circuit distinguished prior cases (U.S. v .Miller and U.S. v. Medlock) by focusing on the creation of the identify identification cards—which both constituted a means of identification and were used by White. With that, the Sixth Circuit retained its distinction between the use of a name and the use of an identity, but has apparently signaled its continued effort to narrow the range of circumstances in which that distinction may have application.

Friday, January 20, 2017

All in the family: Deference to trial strategy trumps IAC claim related to married attorneys’ conflict of interest

Spouses share many things, but there’s some things they shouldn’t—like clients. Or so teaches the sad tale of Ronald Kelly.

When attorney Greg Robey lost at trial representing Kelly, he turned Kelly’s appeal—raising ineffective assistance of counsel—over to his wife and law partner, Margaret. Worse yet, Greg then showed up at oral argument to present the IAC claim against himself! The appeal court, flagging this yowling conflict of interest, refused to adjudicate the IAC claim. It also denied Kelly's appeal.

The same court, however, overturned Kelly's co-defendant’s conviction, concluding that the trial court erred in rejecting his attorney's request for a lesser-included-offense jury instruction.

The Robeys hadn’t raised this now-successful jury instruction issue at trial or as part of their IAC claim on direct appeal. So they tried to jump on the bandwagon, arguing for the first time in a petition for en banc review that Greg was ineffective for failing to raise the issue. But the appeals court wouldn’t entertain the claim at that stage and, moreover, once again dinged the Robeys for the persistent conflict of interest.

At this point, Kelly fired the Robeys, and the Ohio Public Defender stepped in. But the damage was already done. The defender moved to reopen the direct appeal, arguing that the conflict of interest prevented Kelly from raising meritorious appellate claims, including the jury-instruction issue. In denying the motion, the appeals court reasoned that Greg’s decision to forgo a lesser-included-offense instruction for an all-or-nothing approach fell under the umbrella of reasonable trial strategy. Unfortunately for Kelly, he had already sought state post-conviction relief while represented by the Robeys during the pendency of his direct appeal, without raising the jury-instruction issue, leaving this avenue of relief foreclosed.

Kelly then headed to federal court, seeking habeas relief for the ineffective assistance of both his trial and appellate attorneys. No go. The Sixth Circuit, in an opinion from Judge Boggs, reasoned that the trial IAC claim failed because Kelly didn’t raise it on direct appeal, leading to procedural default. Further, the court refused to excuse the default on the basis of appellate IAC: the trial IAC claim would have been meritless, the court reasoned, because in its view Greg’s all-or-nothing defense wasn’t objectively unreasonable, despite the fact that it conflicted with no less than 10 eyewitness accounts

The court acknowledged in conclusion how screwed up Kelly's case was because of "the poor performance of his counsel of direct appeal" but emphasized the deference afforded to trial counsel's strategic decisions. 

Wednesday, January 18, 2017

The long arm of supervised release

It’s only three pages long but packs a ... punchy lesson about “termination” versus “revocation” of supervised release. The Sixth Circuit held today in United States v. Cross that district courts retain jurisdiction over defendants on supervised release even after supervision is revoked—at least for violations predating the revocation.

After serving 5 years for a marijuana offense, Robert Cross used drugs on supervision. In response, the district court revoked supervision and tacked on 8 more months in prison, with 2 more years supervision. Then, two years later, while Cross was still on this extended supervision, the court learned that he had committed a state theft offense before the first revocation hearing. The court gave him an extra day in prison and 5 more years of supervision.

Cross challenged the court’s jurisdiction to revoke the second time, but the Sixth Circuit wasn’t having it. The difference, the court explained, is between revocation and termination: Termination discharges supervision altogether, 18 U.S.C. § 3583(e)(1); revocation merely requires part of the supervision to be served in prison, id. § 3583(e)(3). Cross was only revoked the first time, not terminated, and thus the district court retained jurisdiction to revoke him again. It makes no difference, the Sixth Circuit reasoned, that § 3583(h) says courts may impose a term of supervised release following re-imprisonment. In the court’s view, this statute simply acknowledges the reality that a defendant continues on release after a term of re-imprisonment unless the court “terminates” supervision.

Friday, December 09, 2016

Sixth Circuit Reverses Denial of Motion to Suppress

In United States v. Abernathy, the Sixth Circuit considered the denial of a motion to suppress stemming from the search of a residence. Officers obtained a search warrant after conducting a trash pull outside Mr. Abernathy's home. That trash pull yielded marijuana roaches and T2-laced plastic bags.

The search warrant affidavit included the statement that the occupants of a residence were "currently engaged in illegal activity." At the Franks hearing that followed, the detective affiant admitted he had no information that anyone was selling drugs out of the residence, had no direct evidence of drug trafficking, and had not seen Mr. Abernathy do anything connected to his residence and drug dealing. While the district court struck the statement in the affidavit as misleading, it ultimately upheld the search warrant, finding that a trash pull alone established probable cause.

The Sixth Circuit considered for the first time whether a trash pull, standing alone, can establish probable cause to search a home. Relying on previous decisions that hinted as much in dicta, the Sixth Circuit held the trash pull alone "did not create a fair probability that drugs would be found in Defendant's home." The Sixth Circuit also found the good faith exception did not apply to the search, particularly in light of the Franks violation.As a result, the district court erred in denying Mr. Abernathy's motion to suppress.