Tuesday, June 27, 2017

Stitt!!!!!!!!!!!!!!!!!

Tennessee aggravated burglary is NOT a crime of violence. Details to be posted by whichever colleague whose thunder I just stole. I'm just really excited.

Opinion here

Friday, June 16, 2017

Sixth Circuit Recognizes Child Abuse Exception to Marital Communications Privilege

The marital communications privilege allows a defendant-spouse to preclude testimony by his or her spouse regarding confidential marital communications. The privilege has exceptions, of course, as do all privileges, and the Sixth Circuit recognized a child abuse exception in United States v. Underwood.

Underwood was charged with sex crimes perpetrated against his step-granddaughter, who was between eleven and twelve years old at the time. On appeal he challenged admission of testimony over his assertion of the marital communications privilege from his wife (1) that she became concerned about defendant’s favoritism toward their step-granddaughter; (2) about an incident when she found that defendant had changed the bed linens while he and the child had been at home alone; and, (3) regarding text messages and voicemails she received from defendant where he did not deny sexually assaulting the child and “apologized for not being a perfect man.”  

The Court principally relied on decisions from the First and Tenth Circuits, United States v. Breton, 740 F.3d 1 (1st Cir. 2014), and United States v. Bahe, 128 F.3d 1440 (10th Cir. 1997), to recognize and apply a child-abuse exception to the marital communications privilege. The child-abuse exception rests on four considerations: (1) a crime against a spouse or a spouse’s child profanes the trust and bond of marital partners and disrupts family harmony; (2) parental testimony is particularly necessary in child-abuse cases, because child abuse occurs most often in the home at the hands of a parent or parent-substitute; (3) the marital privilege, like all privileges, must be interpreted narrowly; and, (4) overwhelming state legislative and judicial authority that the marital communications privilege does not apply where the crime is against a spouse’s child.

Applying these considerations in a “fact-intensive inquiry” the Court explained as follows: (1) defendant’s sexual abuse of his wife’s granddaughter profaned the marital relationship and disrupted family harmony; (2) defendant sexually abused his spouse’s granddaughter while serving as a parental-substitute; (3) that the child was a granddaughter as opposed to a daughter made no significant policy difference; and, (4) that the crime occurred in defendant’s “sleeper truck,” as opposed to their home made no difference since the truck was the functional equivalent.

The Court also upheld admission of testimony from defendant’s daughter concerning his sexual assault on her more than 20 years prior to the trial pursuant to FRE 414.


Robert L.Abell
Zach Turpin 

Tuesday, June 06, 2017

Certiorari granted in Sixth Circuit case involving seizure of cell phone location records.


As noted in a previous post, the Sixth Circuit recently held in United States v. Riley that tracking a fugitive’s real-time GPS location through his cell phone was not a Fourth Amendment search. The Supreme Court has now taken up a case that involves the government’s seizure of cell phone location records. On the same day that the Riley opinion was issued, the Supreme Court granted certiorari in Carpenter v. United States, No. 16-402, which presents the question “whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.”

 In Carpenter, the defendants were charged with multiple robberies in violation of the Hobbs Act (18 U.S.C. § 1951). They sought to suppress evidence that included “business records from [their] wireless carriers showing that each man used his cellphone within a half-mile to two miles of several robberies during the times the robberies occurred.” United States v. Carpenter, 819 F.3d 880, 884 (6th Cir. 2016). The defendants argued that the government’s acquisition of those records constituted a warrantless search in violation of the Fourth Amendment. The Sixth Circuit upheld the denial of the suppression motion.  

 The Sixth Circuit recognized a distinction between “a communication’s content and the information necessary to send it.” In the court’s view, cell-site data is information that facilitates personal communications, “rather than part of the content of those communications themselves.” Carpenter, 819 F.3d at 887. The bottom line was that the government’s acquisition of records containing cell-site data was not a search under the Fourth Amendment and the defendants did not have a reasonable expectation of privacy in those records.
 
The Supreme Court may rule on the issue by the end of the year.

 

Government’s tracking of real-time GPS coordinates from fugitive’s cell phone is not a Fourth Amendment search.


In United States v. Skinner, 690 F.3d  772, 774, 776-77 (6th Cir. 2012), the court held that the government’s use of real-time cell phone GPS data to track a suspected drug trafficker as he traveled for several days in a motorhome driven on public roads was not a search. An important factor in Skinner’s Fourth Amendment analysis was that the defendant’s movements could have been observed by members of the public. Id. at 779. Relying on Skinner, the Sixth Circuit held in United States v. Riley, that tracking the real-time GPS location data from a fugitive’s cell phone for about seven hours preceding his arrest did not constitute a Fourth Amendment search.
          A state court issued an arrest warrant for Mr. Riley. He bought a cell phone and gave the number to his girlfriend who gave it to law enforcement officers. The officers obtained a court order for call metadata which included real-time tracking of the cell phone. Following the issuance of the court order, officers received real-time GPS data which showed that Mr. Riley’s cell phone was located at a motel in Memphis. The officers went to the motel and learned Mr. Riley’s room number from an employee. Mr. Riley was arrested and subsequently filed a motion to suppress a gun that was found in his room. Mr. Riley contended that the gun was the fruit of an unconstitutional search because the government’s method of tracking him violated his reasonable expectation of privacy and therefore required a search warrant. The Sixth Circuit upheld the denial of the suppression motion.
          The court recognized that a warrantless search inside a home (or a hotel room) is presumptively unreasonable. Mr. Riley, however, was not subject to a Fourth Amendment search because the use of GPS location data to determine the location of a person or a cell phone “does not cross the scared threshold of the home,” as long as the tracking “does not reveal movements within the home (or hotel room).” Riley, at p. 8 (court’s emphasis). The tracking here only showed that Mr. Riley “traveled to [the motel], “not which room (if any) the phone was in at the time of the tracking.” Id. (court’s emphasis). A significant factor in the court’s reasonable-expectation-of-privacy analysis was that the government learned no more about Mr. Riley’s whereabouts from the tracking than what “he exposed to public view by traveling to the motel lobby ‘along public thoroughfares.’” Riley, at p. 9 citing Skinner, 690 F.3d at 774 (court’s emphasis). The court emphasized that “one cannot expect privacy in one’s public movements.” Riley, at p. 9 (court’s emphasis).
          The per curiam opinion concludes with some good advice: if a person “truly wished to avoid detection, he could have chosen not to carry a cell phone at all, or to turn it off.” Riley at p. 9 (court’s emphasis).
          In a concurring opinion, Judge Boggs discussed several other factors that in his view supported the court’s holding. The most significant factor was Mr. Riley’s status as a fugitive as opposed to being a suspect. In Judge Boggs’ view, Payton v. New York, 445 U.S. 573 (1980), “as corroborated by significant historical evidence of the original meaning of the Fourth Amendment, provides strong support for the proposition” that fugitives who are on the run from arrest warrants have a diminished expectation of privacy. Riley, at p. 12 (concurring opinion). He would hold that Mr. Riley’s Fourth Amendment argument fails because “he was a fugitive subject to a valid arrest warrant,” and the officers had reasonable suspicion that he was in possession of the cell phone they were tracking. Riley, at p. 10 (concurring opinion).   

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?