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.

Tuesday, October 20, 2015

What Is Relevant Conduct in a Child Pornography Case?

Today, the Sixth Circuit considered what constitutes "relevant conduct" under Guideline 1B1.3(a) in a child pornography case. In United States v. Hodge, the Court addressed the two-level reduction under Guideline 2G2.2(b)(1), which applies when "the defendant's conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor" with no intent "to traffic in, or distribute, such material." The Hodge court affirmed the sentence, holding the reduction did not apply because of other relevant conduct that suggested distribution.

The defendant in Hodge was secretly videotaping his minor step-daughter while she was naked. When the step-daughter uncovered the camera and the police arrived with a search warrant, they uncovered child pornography on Mr. Hodge's computer. That child pornography, which was exclusively made up of images downloaded from the Internet, served as the basis for the two counts in Mr. Hodge's case.

Mr. Hodge argued the video taping of his step-daughter was not a part of the indicted conduct and did not meet the Guideline definition of relevant conduct. Specifically, he argued under United States v. Fowler, 216 F.3d 459, 460-61 (5th Cir. 2000), receipt requires downloading during a discrete moment in time. The district court found Mr. Hodge's possession of pornography continued through the entire period he was both downloading child pornography and taping his step-daughter.

In analyzing the issue, the Hodge Court surveyed the case law on the definition of "relevant" under Guideline 1B1.3(a)(2) and relied heavily on relevancy requiring the conduct to be a criminal offense - even if it is never prosecuted. The Hodge Court also noted that relevant conduct "must bear some logical relationship to the offense of conviction." While the videos were not lascivious, they did constitute an attempted sexual exploitation of a minor -  a crime.

Further, Hodge analyzed the "trailing clause" of 1B1.3(a)(1), which requires the relevant conduct to occur "during the commission of the offense of conviction." The Court explained Guideline 1B1.3 applies to "groupable" offenses and that the district court should consider other acts that were a part of the same course of conduct, scheme, or plan. The decision also identified some ambiguity as to whether the trailing clause applied to both the (a)(1) and (a)(2) sections.

Ultimately, the Hodge Court held the enhancement was properly applied, because the video taping occurred "during the commission of the offense of conviction" and was part of a common purpose and scheme.

Thursday, September 24, 2015

Pre- and post-Miranda confessions take center stage

It's been another busy (and, at times, discouraging) week for published criminal-law opinions in the Sixth Circuit. The court dipped into legal esoterica in the Olive opinion, addressing at length whether one of two money-laundering counts should have merged in light of United States v. Santos, 553 U.S. 507 (2008). (The court concluded that there was a "merger problem," but that, under Santos, the consequences were not "markedly increased" by virtue of the error, so no harm no foul.) The court also reversed the grant of sentencing-phase ineffective-assistance-of-counsel relief in a death-penalty case in Morris, once again demonstrating that it believes that AEDPA all but precludes relief even for objectively egregious IAC claims.

Perhaps most relevant to the defense bar is the opinion in United States v. Ray, in which the court took a hard look at the relationship between pre- and post-Miranda confessions, wading into a circuit split on the subject.

Based on a (later-contested) search warrant, officers discovered marijuana and firearms in Mr. Ray's home. According to Ray, the officers threatened to arrest Ray's live-in girlfriend --- the mother of his 14-year-old son --- and make his child a ward of the state if he did not talk to them. Prior to receiving Miranda warnings, Ray took responsibility for all of the contraband in the house. An hour and a half later, Ray made statements at the police station that were consistent with his pre-Miranda statements, but the district court refused to suppress those statements. The district court did not consider the Supreme Court's opinion in Missouri v. Seibert, 542 U.S. 600 (2004), which addressed such questions. This failure alone was enough to warrant reversal, but the Sixth Circuit had to address what test to apply from Seibert's sorely divided opinion. Despite contrary precedent from other circuits, the court determined that because the plurality and dissent each received four votes, none of the opinions in Seibert "announce[d] a binding rule of law." Instead, the Sixth Circuit would have to formulate its own test. In doing so, it adopted the multi-factor test announced by the Seibert plurality, under which the admissibility of such statements "hinges on whether a 'reasonable person in the suspect's shoes could have seen the station house questioning as a new and distinct experience, [and whether] the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission.'" The court further detailed the factors to be considered in that analysis.

The opinion is also highly citable with respect to what evidence provides proof that a firearm was possessed "in furtherance of a drug trafficking crime" under 18 U.S.C. 924(c). Ray had three firearms, and the court held that two of them would not support such a conviction despite close proximity to drugs. One was an unloaded shotgun propped behind a door in the same room where drugs were found (with shotgun shells found in the same room), and another was a rifle in a room with no drugs. The court held that neither was "strategically located so that it is quickly and easily available for use." Unfortunately for Ray, a third weapon did suffice to meet the "in furtherance of" test, but this case may provide ammunition (pun intended) for defendants in future cases.

Tuesday, September 15, 2015

Week of September 8-11

Based on last week's rulings, I have three cases to detail:

1) In United States v. Callahan et. al, Case No. 14-3771, the Sixth Circuit affirmed the conviction and sentences for a case relating to forced labor allegations. The defendants went to trial, were convicted, and filed post-conviction motions. The first issue related to a jurisdictional and statutory interpretation issue. Specifically, the appellants sought relief under Bond v. United States, a recent Supreme Court case regarding the reach of federal statutes. Last year, in United States v. Toviave, the Sixth Circuit extended Bond's holding in a forced labor case, holding Toviave's conduct was not the type of conduct Congress meant to regulate and criminalize. In the instant case, the Sixth Circuit distinguished Toviave, finding the appellants conduct was more consistent with the aims of the statute (18 USC 1589). The Court concluded "a rational trier of fact could conclude that S.E. provided labor or services." p. 12. The Court's conclusion makes it seem that the appellate claim was on a weight of the evidence, or sufficiency claim, but Bond/Toviave go directly to the reach of the statute in a more jurisdictional and federalism standpoint. So, the Court's conclusion leaves us wondering.
There are also some interesting jury instruction issues regarding the kidnapping instruction and the quantum of proof required by the instructions.

2) United States v. Brown, No. 13-1761. This case presents an interesting set of circumstances, as law enforcement used an informant to set up a drug buy from the appellant. This led to Appellant being arrested during a traffic stop. Warrants were subsequently obtained for his house and cell phones, leading to additional evidence. On appeal, Brown challenged the denial of his motions to suppress. The Court discussed the requirement that a search warrant must have a nexus to the evidence sought and the place searched. p. 8. The Court looked at the fact that the affidavit to search the home contained no evidence that Brown sold drugs from the home or used the residence for storing drugs. The court stated it was a "close question" as to whether this met the demands of Fourth Amendment, but because the affidavit contained enough of a connection. The Court relied entirely on the fact Brown's car was registered to his home, and therefore there was a fair probability his home would contain evidence of the crime. p. 12. The court's analysis of the facts is pretty short considering the legal analysis that precedes it; the court's awareness that this is a "close question" should give us some solace (but not Mr. Brown), but it really seems like a case of the tail wagging the dog. Judge Clay writes a dissent on this issue detailing the lack of evidence supporting a just affidavit.
If you want to bone up on your evidence caselaw regarding authentication, there is also a discussion on whether a "drug ledger" was properly admitted. The court held its contents were not hearsay, and an agent involved in the search could testify to authenticate it.

3) McCarley v. Kelly, No. 12-3825. This is a 2254 habeas case. The petitioner was convicted in state court of aggravated murder. McCarley's girlfriend was killed in 1992, and police claimed her 3 year old son identified McCarley. The child was taken to a child psychologist to elicit similar statements days later. Twelve years later, McCarley was indicated. He was found guilty, but an error vacated the jury's first verdict. In 2007, a second jury found him guilty and he was sentenced to life. He proceeded with habeas, which was initially denied by the district court. The Sixth Circuit reversed and ordered a conditional writ. In June, the Supreme Court vacated that opinion based on David v. Ayala. On remand, the district court again denied relief. In the instant appeal, the Sixth Circuit reversed and remanded, again ordering a conditional writ.
Now that all the procedural history is out of the way, here's the merits. The Court held that the admission of the child psychologist's testimony was an unreasonable application of clearly established federal law. Specifically, the testimony violated the confrontation clause and Crawford v. Washington. At trial, one of the lieutenants was permitted to read letters between himself and the psychologist detailing the results of the evaluation of the child. The Court found this was "testimonial" evidence, under Crawford and Davis v. Washington. The Court declared the child psychologist was acting more as a police interrogator than a private counselor, and thus an agent of law enforcement. p. 13. The Court relied on the trial testimony in which law enforcement stated the psychologist's "main reason" for the sessions with the child were to "get information" police could not get from the child to identify the suspect for the investigation. p. 14. The court held this was classic testimonial evidence and therefore the state court unreasonable applied Crawford/Davis. The Court then provided a detailed analysis of the remaining testimony, showing "the importance" of the testimony of the psychologist both in the case-in-chief and closing argument. Because the psychologist's testimony was the "keystone" of the state's case, admission of the admission was not harmless error and therefore required relief.
This case provides a very thorough analysis if you have a habeas issue regarding confrontation.

Tuesday, September 01, 2015

Objections to facts in the PSR: this is not just a child porn case

Bottom line for child porn offenses:

United States v. Cover, 14-3641 holds that the depiction of an 11- or 12-year-old child penetrated orally by an adult penis is not per se a depiction of sadistic or masochistic conduct. There was no evidence in the record that the image was violent or depicted the infliction of physical or psychological pain. The Sixth ruled this holding was not in conflict with United States v. Groenendal, 557 F.3d 419 (6th Cir. 2009) ("penetration of a pre-pubescent child by an adult male constitutes inherently sadistic conduct") because an 11- or 12-year-old child is not necessarily pre-pubescent. The Court also noted, "As sad as it is, there is no denying that many eighth-graders these days voluntarily engage in oral sex, presumably without experiencing pain."

IMPORTANT discussion for anyone filing Shepard-based objections to Presentence Reports regarding ACCA, Career Offender, 2K2.1, etc. etc. etc.:

Remember, a "district court is allowed to accept as true all factual allegations in a presentence report to which the defendant does not object." United States v. Bondurant, 146 F. App'x 762, 763 (6th Cir. 2005) (quoting United States v. Levy, 250 F.3d 1015, 1018 (6th Cir. 2001). In Cover, the Sixth reminds us the district court can rely on facts in the PSR unless there is a "dispute." "To create a factual dispute, a defendant 'must produce some evidence that calls the reliability or correctness of the alleged facts into question' - a burden of production that requires 'more than bare denial.'" Cover at *2(citing United States v. Lang, 333 F.3d 678, 681 (6th Cir. 2003).

It would be insufficient for prosecution or defense to file an objection that merely stated, "defendant/government objects to the information contained in paragraph 30" or "objects... because it is not true." For instance, in the context of information that might ultimately be used in a Shepard analysis, the objection should contain a discussion about how the probation officer preparing the report is allowed to glean information from non-Shepard sources and those have not been deemed reliable enough for a Shepard analysis, as well as an offense-specific discussion of what the Shepard documents do show about a particular offense.

State restoration of rights does NOT restore federal gun rights

In a lengthy opinion today, the Sixth Circuit ruled that even though a FEDERAL felon had their Tennessee state civil rights fully restored - including specifically his right to have a firearm - his federal right to firearms had not been restored. The majority in Walker v. United States, 14-5703 applied the test set out in United States v. Cassidy, 899 F.2d 543, 550 (6th Cir. 1990): in determining whether a person's civil rights were restored, the court should look at the right to vote, the right to sit on a jury, and the right to seek and hold public office.

Mr. Walker's right to seek and hold public office was never lost - even felons can run - so it was never restored. You cannot restore that which you have not lost in the first place.

Mr. Walker's right to sit on a federal jury was assumed for the sake of argument to have been lost and then restored, but one restoration is not enough.

Mr. Walker's right to vote was not restored in any way that directly addressed his personal felony conviction, or the status of all felons, and so does not "count" under this analysis.

So, no restoration and restoration without proper consideration are problematic.

Judge Clay filed a dissent.

The case is very dense and a good read to see just how detailed a statutory interpretation the Sixth is willing to go through.

Monday, August 31, 2015

Evading arrest not a predicate for ACCA

Very quick, unpublished opinion today in United States v. Odell Holder, 14-5666. Case was remanded by the Supreme Court for evaluation under Johnson. Sixth held that evading arrest is not a predicate offense.

Friday, August 21, 2015

Summons Is Not "Intervening Arrest" for Career-Offender Purposes

In United States v. Powell, No. 14-3932 (Aug. 19, 2015), the Sixth Circuit clarified application of the career-offender provision under the Sentencing Guidelines.

Powell argued that the district court erred in classifying him as a career offender because the court mistakenly counted two of his prior convictions separately.

The Guidelines explain that “prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest.” U.S.S.G. § 4A1.2(a)(2). “If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Count any prior sentence covered by (A) or (B) as a single sentence.” Id.

The district court relied on pair of assault convictions t
o sentence Powell as a career offender. But Powell merely received a summons for the first of these charges before being arrested two months later on the second charge, and he was sentenced for both crimes on the same day. The Sixth Circuit sided with an en banc Ninth Circuit decision, and dicta from other circuits, to decide that an intervening summons or citation does not constitute “an intervening arrest” under § 4A1.2(a)(2). The Sixth Circuit declined to follow a contrary decision from the Seventh Circuit.

On another important note, Powell had waived most of his appellate rights as part of his plea agreement, but preserved his ability to challenge the determination of his criminal-history category. This exception, the Sixth Circuit decided, allowed an appellate challenge to the career-offender determination, even though it affected both Powell's criminal history and offense level. Even more interesting, the court's holding ultimately did not change Powell's criminal history category: his score dropped from 20 to 15, leaving him in
 category VI. But the Sixth Circuit nonetheless remanded because of the change in offense level.