Wednesday, June 29, 2016

The sentencing wisdom of the jury

The Sixth Circuit offered up a major sentencing win for the defense today in United States v. Collins, reaffirming the notion that judges have broad discretion in what factors they consider at sentencing. Here, the judge considered a "jury poll" as just one factor in imposing concurrent five-year sentences for receiving and distributing child pornography.

While juries are not ordinarily supposed to be involved in sentencing decisions, some judges have begun polling juries after the verdict to see how they would have sentenced the defendant, in part to see how far "off" our mandatory minimum sentencing schemes really are. It has become common to hear of juries assuming that a defendant would receive six months for a drug crime that imposes a decades-long mandatory sentence. Perhaps less common is to see a jury think that a child-pornography defendant should get only a little more than a year, but that is exactly what happened here. The district court considered that jury poll as one factor in granting a downward variance from the guidelines range of 262-327 months to only 60 months. The government appealed.

The Sixth Circuit panel made explicit what it had only expressed in dicta in a previous case, United States v. Martin, 390 F. App'x 533 (6th Cir. 2010): The district judge did not err in considering the jury poll. Indeed, as the panel noted, a guidelines sentence must consider "the community view of the gravity of the offense" in accordance with Section 994(c)(4) of Title 28. The opinion is remarkable in its rereading of cases that defense lawyers typically hate, including the notorious Bistline opinion. The panel reads that case as suggesting "the plausibility of rejecting guidelines ranges in child pornography cases based on policy disagreements." (Unfortunately, the opinion also suggests that the district judge in Bistline "made no genuine efforts to discuss the § 3553(a) factors," which is inaccurate.)

The opinion makes clear that it does not affect precedent prohibiting juries from considering sentencing in rendering a verdict, but it does offer a reminder that juries can rightly be considered as the voice of their communities.


 

Tuesday, June 28, 2016

If at first you don't succeed

Every now and again a lawyer finds a way to snatch victory from the jaws of defeat. Case in point: United States v. Ricky Brown. You might remember this case from back in September 2015. Or more probably you don't remember it, because it was just another affirmance of the denial of a suppression motion -- a common sight in the Sixth Circuit. But Dennis Terez in the Cleveland Office of the Federal Public Defender and Melissa Salinas of the University of Michigan Clinical Law Program evidently did not see it that way.

This case presented a common fact pattern: Officers had probable cause to believe that Mr. Brown was a drug dealer, but no evidence that he used his home for dealing drugs. Nevertheless, they managed to get a search warrant for the home based on the hunch that there would be more drugs there. Back in September two judges (Judge Stranch and District Judge Black) were convinced that the drug dealing outside the home raised enough of a "reasonable inference" to justify a search warrant of the home. Judge Clay disagreed, noting that this question had already been decided by cases like United States v. Frazier, 423 F.3d 526 (6th Cir. 2005).

Mr. Brown's legal team sought en banc rehearing. Rather than grant such rehearing, the three-judge panel took the rare step of reversing itself and issuing an "amended opinion." Although authored by Judge Stranch, that opinion aligned with Judge Clay's dissent from September, noting: "[O]ur cases teach, as a general matter, that if the affidavit fails to include facts that directly connect the residence with the suspected drug dealing activity, . . . it cannot be inferred that drugs will be found in the defendant's home -- even if the defendant is a known drug dealer."

Quite a win for a case that many lawyers would have already written off as a loss.

Monday, June 27, 2016

Pencils Down

Happy J-Day to everyone in the federal-criminal-law community -- the day by which all Johnson petitions are due, depending on your interpretation of how a leap-year affects a one-year statute of limitations. Hopefully everyone has all of their petitions filed and can look forward to their first anxiety-free night of sleep in months. But fate has conspired to make all of the lingering questions linger a little longer: What of the career offenders of the world and the cert grant in Beckles? What of the 924(c) claims? What does Mathis have to say about all of these claims that we raised (or, worse yet, did not raise)? The saga continues. But in the meantime, thousands of petitioners out there have another shot at relief. Congratulations to everyone on their hard work.

Thursday, June 23, 2016

SCOTUS Decides (Another) ACCA Case

It's been a slow week for the Sixth Circuit (at least if you're looking for cases about criminal law), but that's not so for the Supreme Court.  Today, the Court decided Mathis v. United States, which considers whether a burglary conviction under Iowa law can be considered a predicate offense for an Armed Career Criminal Act (ACCA) enhancement.  For a change, we're not reading about the ACCA's "residual clause."  Instead, this is about a so-called "enumerated offense."  The problem (for the Government, at least) is that Iowa's burglary statute criminalizes more conduct than does "generic burglary," as defined by common law and SCOTUS.  Iowa law would permit a burglary conviction for unlawfully entering a vehicle, while "generic burglary" only covers structures.

Justice Elena Kagan, writing for the Court, treats this as a pretty easy question to answer:
As just noted, the elements of Mathis's crime of conviction (Iowa burglary) cover a greater swath of conduct than the elements of the relevant ACCA offense (generic burglary). . Under our precedents, that undisputed disparity resolves this case. We have often held, and in no uncertain terms, that a state crime cannot qualify as an ACCA predicate if its elements are broader than those of a listed generic offense. How a given defendant actually perpetrated the crime—what we have referred to as the “underlying brute facts or means” of commission, —makes no difference; even if his conduct fits within the generic offense, the mismatch of elements saves the defendant from an ACCA sentence. Those longstanding principles, and the reasoning that underlies them, apply regardless of whether a statute omits or instead specifies alternative possible means of commission. The itemized construction gives a sentencing court no special warrant to explore the facts of an offense, rather than to determine the crime's elements and compare them with the generic definition (internal citations omitted).
Today's decision just reaffirms that it's the elements of the statute that matter for ACCA purposes, not the defendant's actual conduct.  If a state's criminal code defines an offense more broadly than the "generic" offense under federal law, than it cannot be a predicate offense for an ACCA enhancement, even if the defendant's specific conduct falls within the narrower elements of the federally defined crime.

Monday, June 13, 2016

Sixth Circuit: 18 U.S.C. § 2113 is mostly a Crime of Violence

For those of you following the great national debate about whether federal bank robbery and Hobbs Act robbery are crimes of violence/violent felonies, the Sixth Circuit has weighed in.

In United States v. William McBride, Jr., the Sixth Circuit ruled that "by intimidation" means the "defendant must at least know that his actions would create the impression in an ordinary person that resistance would be met by force." Thus it is akin to the threatened use of force.

The Sixth notes that the entirety of § 2113(a) is not categorically a crime of violence, that it is a divisible statute, and that portions can be violated without the use, attempted use, or threatened use of force.

Friday, June 10, 2016

A quick note on Padilla and prejudice

The Sixth Circuit weighed in earlier this week on an apparently growing Circuit split regarding ineffective assistance of counsel and failing to properly advise of immigration consequences. Jae Lee came to this country from South Korea with his family when he was a young child. He graduated high school. He became a successful restauranteur. But he never obtained citizenship like the rest of his family. But he did pass ecstasy around to his friends and a government informant.

In 2009, he was charged with possession of ecstasy with the intent to distribute. The Sixth characterized case against him as "very strong" with "overwhelming evidence of guilt." Jae Lee's attorney told him there would be no immigration consequences if he pled guilty, so he pled guilty in order to receive a shorter sentence.

Of course, deportation proceedings eventually commenced, and Jae Lee brought the instant action.

All sides agree defense counsel's performance was deficient. The issue then is did the deficient performance prejudice the defendant? Here lies the Circuit split: how much of a role should deportation play in evaluating prejudice? Is it the end-all, be-all, instant prejudice? Or is it just one of many factors to consider?

The Sixth provides an interesting history of jury trial rights in this country. It's worth a read. In the face of the eight gazillion Johnson petitions waiting for me, though, I will give you the bottom line: in the Sixth Circuit (and Second, Fourth, and Fifth), the risk of deportation is considered alongside the legal merits of the case against the defendant. Because the evidence against Jae Lee was otherwise overwhelming, his counsel's deficient performance in advising the plea was prejudicial. Jae Lee would have been found guilty anyway.

Also, the panel thinks it is dumb that we're deporting an otherwise productive member of our society, who has lived here since 1982.

Saturday, May 21, 2016

Search Warrants Target Places, Not People

In United States v. Church, the Defendant quickly learned that some meals can wait.  David Church, Jr. was bringing home fast food when detectives appeared at his door looking to serve him with a warrant for violating his probation.  The detectives then placed Church under arrest.  At that time, Church asked the officers if he could go inside his home to finish his dinner.  The detectives agreed and Church let them follow him inside.  When they entered, the detectives smelled marijuana.  Recognizing his situation, Church admitted to smoking marijuana and even showed the officers a blunt.  Church then called his girlfriend.  However, his girlfriend did not help the situation when she admitted Church regularly smoked marijuana at the home.
One of the arresting officers left to prepare a search warrant affidavit while Church stayed at his home with another agent and his girlfriend (presumably, he finished his dinner).  In addition to recounting the detective’s conversations with Church and his girlfriend, the search warrant affidavit asserted there was probable cause to believe Church committed a plethora of crimes: RICO, money laundering, and drug trafficking.  The affidavit requested a warrant to search Church’s house for evidence of drugs and drug paraphernalia.  The judge subsequently issued a search warrant that, upon execution, revealed evidence of drug trafficking, guns and ammunition.
Church plead guilty to drug possession with intent to distribute and being a felon in possession of a firearm after the district court denied his motion to suppress the evidence obtained pursuant to the search warrant.  On appeal, Church argued the search warrant affidavit was narrower, i.e. showing probable cause for evidence of simple drug possession, than the search warrant, which authorized detectives to search for evidence for drug possession with intent to distribute.

The Sixth Circuit disagreed and affirmed his conviction.  Holding that “[s]earch warrants are not directed at persons; they authorize the search of ‘places’ and the seizure of ‘things,’” the Court concluded the affidavit needed to only show probable cause to search for marijuana in Church’s house, regardless of what he meant to do with it.  Church and his girlfriend had given the detectives more than enough cause to search his house for marijuana.