Monday, February 08, 2016

Evidence from pending state prosecution is constitutional “fair game” at sentencing

Concurrent state and federal prosecutions can force defendants to make difficult judgments about trial and sentencing strategy. The Sixth Circuit recently held that such difficult choices do not violate the Fifth Amendment.

In United States v. Alsante, the defendant faced sentencing in federal court while separate state charges were pending. The court allowed the government to introduce evidence of the alleged state crimes, and the defendant chose not make a personal statement or otherwise offer rebuttal evidence. The court departed upward from the 15-21 month guideline range, sentencing the defendant to 54 months in custody.
On appeal, the defendant argued that the introduction of evidence of his state crimes violated his right against self-incrimination. He asserted that the difficult choice between staying silent or testifying to help himself in the federal court while risking self-incrimination on the state charges created unconstitutional coercive pressure to speak. The Sixth Circuit did not agree. In the published opinion, the Court held that unlike threats of physical or economic harm, the pressure felt by every defendant when deciding whether to speak and attempt to help himself or avoid any risk of self-incrimination does not cause the type of compulsion that the Fifth Amendment prohibits.  The Court added that “the exercise of Fifth Amendment rights need not be cost-free” and that the Constitution does not forbid requiring a defendant to make difficult judgments about strategy.
The Court also rejected the defendant’s due process argument that mounting a strong defense to the evidence of his alleged state crimes might have revealed his state court trial strategy or elicited damaging information, creating an unconstitutional burden on his ability to defend the state charges. Under the lower constitutional protections at play during sentencing, the Sixth Circuit held that the due process clause requires only that the defendant have available options to speak or stay silent. The district court need not “relieve the defendant of all difficult tactical choices” to satisfy the Fifth Amendment.

Accordingly, evidence from pending state prosecutions is “fair game” at federal sentencing hearings, and defendants must continue to make difficult choices about sentencing strategy when such information is presented by the government.

Tuesday, January 26, 2016

You can't penalize a defendant at sentencing for refusing to present evidence in support of a claim

We have all been there before - a client contends that the police are lying, they are not providing all of the evidence, or, even more significantly, have doctored the evidence.  So what happens?  You investigate, find out whether there is any truth to the allegations, and act (or not act) accordingly.  But every once in awhile, the client moves forward without you.  And that is when the trouble can really start.

In United States v. Cabrera, the defendant was convinced that police had altered an audio tape of an undercover buy.  After trial, the defendant, acting pro-se, suggested that not only was the tape altered, but that the police officers were corrupt, and that he had been forced to participate in the crime at gunpoint.   At sentencing, the court imposed the high end of the Guidelines range, based in part on the allegations (which the court determined were attempts to "game" the system), and the defendant's failure to present evidence in support of the allegations.

The Sixth Circuit determined that the court's reliance on both of these factors was reversible error, even under a plain error standard of review.  The Court first determined that by punishing Cabrera for failing to put on evidence (such as his own testimony) on the issue of the tape alterations, it was punishing Cabrera for exercising his Fifth Amendment privilege against self incrimination.

Next, the Court determined that the Sixth Amendment was also violated when Cabrera was punished for raising a "fantastic" claim.  "By relying on this factor, the district judge violated Cabrera’s Sixth Amendment right to oppose the government’s case against him."  Such conduct fell outside the purview of  18 U.S.C. § 3553(a)(2)(A).   The Court therefore remanded for resentencing.

Tuesday, January 12, 2016

No Extensions of Time for Initial § 2255 Motions

This week, the Sixth Circuit published a decision in United States v. Asakevich disagreeing with the Third Circuit about a district court's jurisdiction to grant a request to extend time to file a 28 U.S.C. § 2255 motion before the motion is filed. 

Federal prisoners generally have one year to file a motion to vacate their sentences. 28 U.S.C. § 2255(f). In Asakevich, as the deadline approached,the defendant asked the court for a 90-day extension. The Sixth Circuit affirmed the district court’s conclusion that it lacked authority to grant the extension motion, since there was no live case or controversy at the time of his request.

The court recognized that its opinion conflicts with the Third Circuit’s decision in United States v. Thomas, 713 F.3d 165, 173–74 (3d Cir. 2013). There, the Third Circuit held that district courts have jurisdiction to consider preemptive motions to extend time for § 2255 motions because, unlike petitions under § 2254, § 2255 motions are a continuation of the defendant’s federal criminal case. In rejecting this reasoning, the Sixth Circuit looked to the policies underlying § 2255 and concluded that there was no persuasive basis for distinguishing it from § 2254 for these purposes.

The court recognized in closing, however, that a pro se extension motion could provide sufficient details about the proposed § 2255 action to fairly construed it as an initial § 2255 pleading. It also noted that a failed pro se extension motion may provide support for an equitable tolling argument. 

Tuesday, December 15, 2015

Judge White: TN definition of "habitation" may make Aggravated Burglary non-generic

Today's published opinion in United States v. Priddy, No. 15-5136, is most exciting for Judge White's partial concurrence.

First, the meat of the case. Mr. Priddy was charged with two counts of felon in possession. He has prior Tennessee convictions that include three for Aggravated Burglary, one for Robbery, and two for Burglary. Mr. Priddy wanted his attorney to objection to his ACCA classification. Counsel noted at sentencing, "I think he falls into the Armed Career Criminal category" and "the [prior convictions] that give rise to the application of [the ACCA enhancement] are three aggravated burglaries, then two burglaries of a business or of some other thing that was not a residence, and a robbery."

The Sixth Circuit discussed the difference between waiting an issue and forfeiting an issue and concluded, "... where the defendant has 'explicitly agreed' that a particular guideline calculation or enhancement applies to his sentence, any challenge to that enhancement on appeal is waived." Normally, the Sixth "does not review" waived issues, but decided to give Mr. Priddy "the benefit of the doubt" and conduct plain error analysis of his claims.

The Sixth Circuit then described Tennessee Aggravated Burglary: "[a]ggravated burglary occurs when an individual enters a habitation 'without effective consent of the property owner' and ... intends to commit a felony." It pointed to its finding in United States v. Nance, 481 F.3d 882 (6th Cir. 2007) that Tennessee aggravated burglary is a generic burglary for ACCA purposes.

What Nance and the majority in Priddy both failed to do, however, is look to Tennessee's definition of "habitation" in TN Stat 39-14-401:
a) any structure, including buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons,
b) "a self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant, and
c) includes each separately secured or occupied portion of the structure or vehicle and each structure appurtenant to or connected with the structure or vehicle.

In her concurrence, Judge White noted this "expansive definition" "likely renders [Tennessee's] aggravated burglary statute broader than Taylor's definition of generic burglary." She questioned the continued validity of Nance and pointed to alternate holdings in Ozier and Lara.

Whether Tennessee's Aggravated Burglary statute is divisible, and how far it is divisible, is still somewhat in debate. The Sixth Circuit has held the statute indivisible and has held it divisible. Contrary to the Sixth's holding in Lara, there is argument to be made that, though "habitation" has a list of alternate situations, a sentencing court should not delve into those facts, as a jury would not need to find what sort of habitation was burgled in order to find a defendant guilty of Aggravated Burglary.

The plain error analysis in this case limits its use for the position that Tennessee Aggravated Burglary is a predicate offense for ACCA. Judge White's concurrence indicates the "habitation" issue is still a live issue that counsel should be aware of.

Tuesday, December 01, 2015

Habeas Law: How to Count to Two

The Anti-Terrorism and Effective Death Penalty Act, passed in the wake of the bombing of the Murrah Federal Building in Oklahoma City, imposes a labyrinthine set of rules that must be followed by those seeking federal habeas relief.  In particular, these rules strongly disfavor the filing of "second" or "successive" habeas petitions.  Ordinarily, an inmate who files a second or successive petition must first seek the permission of a court of appeals to do so, and the appellate court may give its permission only under limited circumstances.

Things get hairier, though, when an inmate files a habeas petition, the petition is fully litigated, the state court subsequently enters some new judgment, and the inmate seeks to file another petition.  Is this new petition, premised on the new judgment but raising claims directed at the original conviction, a first or second petition?

That's what today's decision in King v. Morgan seeks to answer.

In 2004, DeLawrence King was convicted of two counts of murder and one count of felonious assault.  After exhausting his state court remedies, he ultimately sought federal habeas relief, which was denied.  (The Sixth Circuit affirmed that denial.)  King then filed a motion for resentencing in the state trial court, arguing that in imposing its sentence, that court had erred in the imposition of post-release control.  The state court granted the motion and re-sentenced King, creating a new judgment.  So King filed a new habeas petition, challenging both the new sentence and the original conviction.

In an opinion by Judge Sutton {joined by Judges Boggs and White), the Sixth Circuit holds that King's claims regarding his original conviction should be treated as being part of a first petition for habeas relief.   The panel notes that in so holding, it joins the majority of circuit courts to consider the issue.  (The lone outlier is the Seventh Circuit, which reached the opposite conclusion in a 2-1 decision.)  The Supreme Court's 2010 decision in Magwood v. Patterson, which requires that a petition that challenges only the new judgment in circumstances similar to King's be treated as a first petition, weighs heavily in the Sixth Circuit's reasoning; the Magwood court took a "judgment-based approach" rather than a "claims-based approach" to figure out the first-or-second question.  Also, Judge Sutton recounts several practical concerns that favor treating such petitions as first petitions.

One other nugget:  the opinion specifically praises King's appointed counsel, Erin Murphy, for her work on the case.  According to her bio, Murphy was a law clerk to Judge Sykes (7th Circuit) and Chief Justice Roberts following her magna cum graduation from Georgetown Law.  (The name may be familiar to SCOTUS-watchers, as she successfully argued on behalf of the RNC in McCutcheon v. FEC.)  It's not often that a pro se habeas litigant lucks into such high-powered appellate counsel.

Sunday, November 29, 2015

Jury Need Not Be Instructed on Regulatory Violations

The Sixth Circuit recently found no plain error where a jury was not instructed on the regulations underlying an element of an offense. In United States v. Lechner, the Government charged that the defendant failed to appropriately store explosives.  The third element of that offense is that the explosives were stored “in a manner not in conformity with regulations promulgated by the Attorney General.” 18 U.S.C. § 842(j). The case demonstrates, once again, the need for contemporaneous objections at the district courts.

In the case, the district court failed to instruct the jury in regard to the regulations. The Government successfully argued on appeal that such instructions were unnecessary (and certainly not plain error) when the meaning of the regulations was offered to the jury through expert testimony. In Lechner’s trial, the Government introduced uncontroverted expert testimony regarding Lochner’s non-compliant storage practices. Although Lochner argued that such testimony amounted only to a government agent’s interpretation of the regulations (as opposed to an authoritative judicial pronouncement), the Sixth Circuit found that if there was any substantive dispute regarding the meaning of the regulations, then such dispute could have been uncovered through cross-examination (“Lechner’s counsel may have been reticent to do so because drawing the jury’s attention to the text of the regulations would not have worked in Lechner’s favor.”). Hence, the Court found no plain error.

In a curious aside, the case is also interesting for its citation to the Tenth Amendment, which has essentially become "meaningless rhetoric" since the administration of Franklin Roosevelt. See Garcia v. San Antonio Transit Authority, 469 U.S. 528 (1985) (Powell, J., dissenting). The Sixth Circuit cites the Amendment (the one most widely called for in the state ratifying conventions and once described by Jefferson as the “foundation of the Constitution”), then demonstrates how the modern construction of (for example) the Commerce Clause has destroyed the intent of the Amendment. 

Monday, November 02, 2015

Managing property is not the same as managing the enterprise

In United States v. Christian, 13-6530, the Sixth Circuit clarified application of the management sentencing enhancement under USSG § 3B1.1. Christian was part of a four-member truck theft ring, that stole one Mayflower moving truck as well as several 18-wheelers carrying loads of tires. The tires were kept in a storage unit rented in Mr. Christian's girlfriend's name. Co-defendant Lanton had a key to the unit itself, but Christian had the code to get into the facility.

The government argued the 2-point enhancement under § 3B1.1(c) applied because Christian controlled access to the stolen property; that he "managed" the assets of the criminal enterprise. The Sixth Circuit disagreed. Another co-conspirator described Lanton as "the head man over the Mayflower trailer load." Lanton had a buyer for the stolen tires, and only Lanton received payment from that buyer. Lanton told Christian to rent the storage unit, and to do so in his girlfriend's name. Lanton gave Christian 125 tires from one of the thefts. Lanton also convinced Christian to execute an affidavit exculpating Lanton.

In its opinion, the Sixth Circuit walked through many of the § 3B1.1(c) considerations: Christian did not recruit others to join the ring. He did not help plan any of the thefts. He lacked special expertise on which the truck theft ring depended. He did not provide information that facilitated the offense. He did not issue orders to any group member.

The Sixth also took care to discuss the difference between a guideline sentencing enhancement and a departure. A sentencing court is required to accurately calculate the guideline range before considering whether to depart. While definite numbers are associated with sentencing enhancements, departures have no such recommendations. Here, the district court erred in calculating the guideline, and so must be reversed.

Also of interest, the Court gave very clear remand instructions: the government did not ask for a second chance to support the § 3B1.1 enhancement on remand, and had told the district court it had no other evidence to support it. Christian was to be resentenced using a guideline range not based on the § 3B1.1 adjustment. The Court expressly left open debate on the amount-of-loss adjustment as well as any other argument Christian might raise at sentencing.