In an amended decision analyzing the federal assault statute, 18 U.S.C. 113, the Sixth Circuit concluded the offenses of assault with a deadly weapon - 113(a)(3) - and assault resulting in serious bodily injury - 113(a)(6), are both crimes of violence under the Guidelines. United States v. Verwiebe, Case No. 16-2591 (6th Cir. Oct. 20, 2017). The original decision issued in late September.
Of particular note, opinion author Judge Sutton concluded that a crime that already includes some use or threat of force automatically becomes an offense involving violent force (and satisfying the force/elements clause) when a dangerous weapon is involved. Put another way, a dangerous weapon element, under this opinion, seems to make the offense a violent use of force offense per se. Specifically, the Court noted that 113(a)(3) "involves violent force because it proscribes common law assault with a dangerous weapon, not simple common law assault."
In looking at the stickier question of serious physical harm, the Court reasoned that the language itself is all that is required. The Court opined, "How could it be possible to suffer serious bodily injury without force capable of producing such injury?" The Court reached that conclusion, in part, by referring to their pre-Johnson decisions in United States v. Anderson, 695 F.3d 390, 401 (6th Cir. 2012), and United States v. Evans, 699 F.3d 858, 864 (6th Cir. 2012).
The Verwiebe decision is particularly significant, because it holds that even indirect force can be sufficient to satisfy the definition of crime of violence in the Guidelines. The well-worn scenario used by many defense attorneys is that of a poisoner - the defendant violates the statute by poisoning another but is not using violent physical force to do so, rendering the statute more broad that the crime of violence (or ACCA) definition. The Sixth Circuit disagreed. Instead, it reasoned, "The 'use of physical force' is not the drop of liquid in the victim's drink; it is employing poison to cause serious bodily harm." As Judge Sutton has noted in other violent felony/ crime of violence predicate opinions, the Court is not interested in every conceivable scenario: "Sentencing law does not turn on such fine, reality-defying distinctions."
Not to bury the lead, but this decision also includes a very important holding regarding the requisite mens rea of predicates. The Sixth Circuit has traditionally recognized that a crime involving only recklessness is not a crime of violence under Guideline 4B1.2. United States v. McFalls, 592 F.3d 707, 716 (6th Cir. 2010). However, the Verwiebe Court concluded that McFalls is presumptively overruled by the Supreme Court's decision in Voisine v. United States, 136 S. Ct. 2272, 2280 (2016). The Voisine decision considered the use of physical force required for a misdemeanor domestic violence offense as defined in18 U.S.C. 921(a)(33)(A)(ii). The Sixth Circuit read Voisine to stand for the proposition that
a use of force can be satisfied by recklessness alone and that its
conclusion "applies with equal force to the Guidelines."The Sixth Circuit's opinion also outlined the Circuit split on this issue.
Friday, October 20, 2017
Friday, October 13, 2017
News Flash: A Defendant has a Due Process Right to Receive a Sentence Based Upon Accurate Information.
In United States v. Earnest Adams, the Sixth Circuit confirmed the obvious: courts should sentence defendants based upon credible information. Ernest Adams is a seventy-one-year old opiate addict with a lengthy criminal history (approximately twenty prior convictions) and an even lengthier history of drug abuse. Mr. Adams ultimately received a five year federal sentence an a three year term of supervised release. After repeatedly testing positive for opiates, the United States Probation Office ultimately recommended that the District Court revoke Mr. Adams's supervised release. Mr. Adams subsequently admitted his violation, and the District Court revoked his supervised release.
During sentencing, the parties, and the District Court, spent a significant time discussing Mr. Adams's lengthly history of drug abuse. The Government apparently caught the District Court's eye, however, by arguing that a shorter sentence would not prove effective by claiming that there was evidence that the brains of addicted persons take at least eighteen months to "reset," i.e. to break them of their addiction. Not coincidentally, the District Court sentenced Mr. Adams to eighteen months imprisonment with no supervised release to follow.
On appeal, Mr. Adams argued that his sentence was both procedurally and substantively unreasonable. Specifically, he argued that the sentence was procedurally unreasonable by relying upon the Government's "reset" argument, by sentencing him to a term of imprisonment that would help him gain access to the RDAP program, and by concluding that the United States Sentencing Commission's recent recidivism study was limited to violent offenders.
The Government audaciously responded that a defendant "does not have a due-process right 'to be sentenced based on accurate information...beyond the facts of the defendant's own actions and criminal record.'" The Court summarily rejected this argument. Of particular importance to the Court was the District Court's reliance upon the Government's "reset" argument. Noting that the Government did not cite a specific study or provide support for its assertion either during the sentencing hearing or in its appellate brief, the Court concluded that Mr. Adams's sentence was procedurally unreasonable because he District Court erred in relying upon an unsubstantiated assertion that had "the veneer of accuracy due to its supposed status as a product of scientific research." Because the District Court based its sentence on the Government's erroneous "reset" argument, the Court also concluded that Mr. Adams's sentence was also substantively unreasonable since it based his sentence on rehabilitative grounds. The Court vacated Mr. Adams's sentence and remanded the matter for resentencing.
Although this author pokes fun of the Government's response here, one can ascribe sincere concern by the District Court toward Mr. Adams and his struggle with addiction. Here is to hoping that the District Court, and Mr. Adams, can fashion a sentence upon remand that will truly help him beat his addiction and avoid further trouble.
Sunday, October 01, 2017
By a vote of 2 to 1, the Sixth Circuit refused this week, in United States v. Robinson, to grant a new trial based on evidence of racial bias infecting a jury.
The three defendants were convicted at trial of running a pay-to-play scheme in a southern Ohio school district. All three defendants are black; the jury had only two black members.
One defense attorney felt the two black jurors looked uncomfortable during the verdict and jury polling. So after the trial, he hired a private investigator to interview the jurors (in violation of court rules and the court's instruction not to contact them).
The two jurors said that they were initially unconvinced of the defendants’ guilt. But then this happened (as summarized in Judge Donald's dissent):
The white jury foreperson accused the two black members of the jury of deliberately trying to hang the jury because of their shared race with the Defendants, raising the suggestion that the two jurors were protecting Defendants because “maybe [they] felt [they] owed something to [their] black brothers.” The foreperson also stated, “I find it strange that the colored women are the only two that can’t see” the defendants’ guilt. These comments escalated the tension in the jury room to the point that the marshal’s intervention was required.
The defendants moved for a new trial before sentencing. The district court denied the motion based in large part on Fed. R. Evid. 606(b)’s admonition against using juror testimony to impeach a verdict.
On appeal, the defendants argued that Pena-Rodriguez v. Colorado, 137 S. Ct.855 (2017), decided during pendency of the appeals, allowed impeachment of the verdict based on the foreperson’s racist remarks.
The majority decision
Judge Rogers, writing for the majority, distinguished Pena-Rodriguez on two grounds:
- Unlike in Pena-Rodriguez, the defense attorney violated a local court rule and a specific instruction from the judge not to contact jurors.
- The majority concluded that the foreperson’s remarks didn’t meet the requirement that juror racism rise above “offhand comment[s] indicating racial bias or hostility." Rather, Pena-Rodriquez requires a clear statement “tend[ing] to show that racial animus was a significant motivating factor in the juror’s vote to convict.” As the majority read this requirement, there can be no impeachment of the jury in this case because the foreperson “never suggested that she voted to convict [the defendants] because they were African-American."
Judge Donald issued a strong dissent taking aim at the majority’s efforts to distinguish Pena-Rodriguez and tracing the history of racial bias in jury issues, ending with this conclusion:
The history of racial bias in the courtroom is not only a stain on our shared past; its corrosive effects persist to this day. The enduring shadow of bias also dims public confidence in the fairness of the courts. The majority’s decision represents a step backwards from the strides we have made towards eradicating this disgraceful legacy from our criminal justice system. For the reasons set forth above, I differ with the majority with regard to the issues of racial animus within the jury and to the Allen charges, which, operating in a mutually reinforcing manner, exerted pressure on the two black jurors who were not prepared to vote for a guilty verdict. In combination with the racial animus contained in the jury foreperson’s remarks, these circumstances raise serious doubts about the fairness and impartiality of the jury’s decision.
Thursday, September 28, 2017
The Sixth Circuit yesterday, in United States v. Verwiebe, held that two federal crimes—assault with a dangerous weapon and assault resulting in serious bodily injury—constitute “crimes of violence” under the “elements clause” in the career-offender guideline.
According to the court, even though simple common law “assault” by itself may not be a crime of violence, once you add “use of a dangerous weapon” or a resulting “serious bodily injury,” it does. In the court’s view, it’s impossible to commit an assault with a weapon or that results in serious bodily injury without using or threatening violent physical force.
The court scoffed at the idea that these forms of assault could be committed without violent force because an offender could use poison:
The “use of physical force” is not the drop of liquid in the victim’s drink; it is employing poison to cause serious bodily harm. See United States v. Castleman, 134 S. Ct. 1405, 1415 (2014). Under Verwiebe’s theory, tripping somebody into oncoming traffic, or for that matter perpetrating a sarin gas attack, would not be a crime of violence. Creative minds, once unhinged from common sense, might even suggest that pulling the trigger of a gun is not a sufficiently direct use of physical force. Sentencing law does not turn on such fine, reality-defying distinctions.
The court also rejected its prior precedent holding offenses are not crimes of violence if “a mental state of recklessness suffices for conviction,” reasoning that this prior precedent was overruled by Voisine v. United States, 136 S. Ct. 2272, 2280 (2016).
Thursday, September 21, 2017
The Court today denied a defendant's right to file a second or successive 28 U.S.C. section 2255 petition, confirming that the Supreme Court's decision in Mathis v. United States, 136 S. Ct.
2243 (2016) did not create a new rule of law, but rather, was compelled by over 25 years of prior precedent. The Court further found that United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016) did not support any successive filing, as it was not Supreme Court precedent made explicitly retroactive.
Today's ruling in In re Conzelmann can be found here.
Friday, September 15, 2017
Sovereign citizens and tax protestors—public defenders of have represented them all. Some sovereign citizens may not explicitly identify themselves as such, but they firmly believe a bevy of unorthodox theories about the U.S. government. It can be difficult to judge whether these sovereign-citizen clients suffer from a mental disease or whether they have simply spent too much time on the Internet. Airiz Coleman was one such person.
The government accused Mr. Coleman of being a felon in possession of a firearm after a bizarre interaction when a recovery agent tried to repossess his car. In court, Mr. Coleman’s behavior was also strange; he claimed that the court lacked jurisdiction over him and that he was charged with a “commercial crime” for which he did not need to answer.
This behavior continued as Mr. Coleman’s relationship with two different lawyers broke down. Right before his trial, he filed a host of documents with nontraditional punctuation, capitalization, and numerous terms of legalese sprinkled throughout an otherwise incomprehensible document. The judge denied each of these pretrial motions.
After a jury found Mr. Coleman guilty, Mr. Coleman filed a motion for a third attorney, dissatisfied with the result of the trial. He claimed his third attorney demanded a fee for a not-guilty verdict, was unprepared for trial, and even that he rendered ineffective assistance of counsel under Strickland standard. The court denied that motion, as well.
At the sentencing hearing, Mr. Coleman sounded a bit more lucid. He described his troubled upbringing and his love for his family. He begged for mercy. But he told the judge that, if released from prison, he had a “guaranteed job on anger management in LA with Charlie Sheen”—a strange remark. Unmoved, the district judge sentenced Mr. Coleman to three years’ incarceration.
On appeal, Mr. Coleman’s fourth attorney asserted that the district court erred by failing to order a competency evaluation sua sponte. The Sixth Circuit therefore had to decide whether there was reasonable cause to believe Mr. Coleman was suffering from a mental disease or defect that rendered him mentally incompetent. The legal standard for incompetency is frustratingly high. A person is incompetent to stand trial if (1) he or she does not have a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, or (2) lacks a rational and factual understanding of the proceedings.
The Sixth Circuit noted that the district court had no evidence that Mr. Coleman had been diagnosed with a mental illness in the past. It also examined Mr. Coleman’s strange behavior in court. But the court reasoned that his repeated reference to civil legal matters, nonsensical use of legal jargon, and unorthodox filings demonstrated that he actually knew exactly what was going on: he knew that he was in court, that courts cannot act without jurisdiction, and even that attorneys must be constitutionally effective (he referenced Strickland, after all). No, the Sixth Circuit said, he did not have a mental disease; he was just a sovereign citizen—or at least sovereign-citizen-ish, which is a belief system, not a mental defect. The court also viewed Mr. Coleman’s presentation at his sentencing hearing as evidence that he could keep it together and act relatively normal when he wanted or needed to do so. Untroubled by Mr. Coleman’s bizarre claim that he had guaranteed work with Charlie Sheen, the court speculated that Mr. Coleman might be imitating the actor’s on- and off-screen behavior to gain an advantage.
In addition, the court was not convinced that Mr. Coleman’s potential mental illness prevented him from communicating effectively with counsel. Instead, the court believed the record demonstrated that Mr. Coleman was just a difficult client who was refusing to communicate with counsel.
In short, the Sixth Circuit believed Mr. Coleman hammed up and toned down his peculiar behavior to gain a tactical advantage. By the court’s estimation, Mr. Coleman was just cunning.
Thursday, September 14, 2017
In Hurst v. Florida, the Supreme Court held that Florida’s death-penalty sentencing scheme unconstitutionally authorized judges to find facts necessary to impose a death sentence. Under Florida’s unconstitutional system, juries recommended a life or death sentence, and then judges held a separate hearing to find mitigating and aggravating factors. Judges then imposed a sentence after consideration of those factual findings and the jury’s recommendation. In the immediate aftermath of Hurst, Professor Douglas Berman predicted there “will likely be multi-headed, snake-like litigation that will grow and grow again” in Florida, federal, and other state courts. He coined the term “post-Hurst hydra” to describe that multi-headed litigation beast. The Sixth Circuit was one of those courts that had to contend with the post-Hurst hydra. In re Coley decapitates one of the post-Hurst hydra’s heads.
In Ohio, in 1998, Douglas Coley was condemned to die after a jury trial. He challenged the conviction and death sentence in state and federal courts until exhausting his available remedies in 2013. Approximately three years later, in January 2016, the Supreme Court decided Hurst. In Mr. Coley’s case, his Ohio jury gave a general verdict. This sentencing scheme potentially violates the Sixth Amendment because a jury never found the aggravating and mitigating facts beyond a reasonable doubt.
Even though he had exhausted his federal remedies, Mr. Coley relied on Hurst to file a petition for permission to file a second or successive (“SOS” for short) petition for a writ of habeas corpus. Unfortunately, that meant he had to satisfy the narrow dictates of 28 U.S.C. § 2244(B)(2). To do so, he needs to show either (1) that his “claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” or (2) that “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence,” and if those facts are proven by clear and convincing evidence, then “no reasonable factfinder would have found the applicant guilty.” Id. (b)(2)(A)–(B). In Mr. Coley’s case, he argued that, had he been able to uncover and prove the fact that Ohio’s death sentencing transferred power from jury to judge, then no reasonable factfinder would have sentenced him to death.
But the Sixth Circuit held that Mr. Coley could not satisfy either standard because the Supreme Court has not explicitly made Hurst retroactive. It also held that Mr. Coley cannot satisfy the second prong because Hurst’s holding cannot be a newly discovered fact for purposes of § 2244(b)(2)(B). To treat a new Supreme Court decision as a new factual predicate, the court reasoned, would undermine the whole point of § 2244(b)(2)(A).
Judge Merritt disagreed on this last point. He believed that Hurst overruled decades of prior precedent, and therefore no attorney or defendant would have investigated the facts underlying the claim. He would send out an SOS to Mr. Coley based on this preliminary showing of a new factual predicate.
SOS applicants from Ohio hoping to rely on Hurst are out of luck. And Mr. Coley is still condemned to die.