Wednesday, January 10, 2018

6th Circuit issues new jury instructions for sex offenses stressing what prosecutors "need not" prove

The Sixth Circuit this morning issued three newly amended jury instructions (and additional updated commentary and title changes). Two of the changed instructions deal with sex offenses, and both were changed to highlight what prosecutors "need not" prove. Interestingly, much of the changes come from unpublished case law.  

The court provided an official summary (shown below), which isn't all that helpful:

Looking at the new instructions themselves, as to § 2251(a), the instruction now states the following:
"it is not necessary that the government prove that the defendant took the pictures," or "that the defendant knew of the interstate or foreign nature of the materials used to produce the visual depictions that the defendant knew of the interstate or foreign nature of the materials used to produce the visual depictions." 
The commentary cites the 2017 decision in United States v. Lively, for the proposition that the "government need not prove that the defendant knew of the interstate or foreign nature of the materials used to establish the jurisdictional hook."

The commentary also cites a 2017 unpublished opinion, United States v. Sibley, which "approved an instruction stating that the government need not prove that the defendant intended to share the visual depiction with others."

As to § 1591(a)(1), paragraph (1)(B)(ii) now states: 
"If you find that the defendant had a reasonable opportunity to observe [insert name of person as identified in the indictment], the government need not prove that the defendant knew or recklessly disregarded the fact that [insert name of person as identified in the indictment] was under the age of 18.]"
As support, the commentary cites the 2017 unpublished decisions in United States v. Jackson and United States v. Davis. The commentary gives this description of Jackson: "the panel concluded that the evidence was sufficient that defendant recklessly disregarded the victims' age; that defendant's initial belief that victims were of age did not warrant reversal when they later encountered reasons to doubt that belief; and that the standard of reckless disregard entitled juries to consider many different types of facts, including 'the victim's appearance or behavior, information from the victim, or others, and circumstances of which a defendant was aware, such as the victim's grade level in school, or activities in which the victim engaged.'"

Tuesday, January 09, 2018

Court refuses to revisit death sentence despite deciding attorney’s failure to retain mental-health expert was inexcusable

Over a vigorous dissent by Judge White, the Sixth Circuit, in Miller v. Mays, affirmed the denial of habeas relief under Rule 60(b)(6) for Tennessee death-row inmate David Miller.

Notably, all three judges agreed that Miller’s trial counsel had no excuse for failing to retain a mental-health expert to help present sentencing mitigation evidence.

But the majority and dissent disagreed on two issues:
  1. Whether trial counsel’s error prejudiced Miller.
  2. Whether Miller exercised proper diligence in pursuing his Rule 60(b) motion.
The second issue is likely more-consequential for future habeas actions, but much more complicated, so let me start with prejudice.

In terms of prejudice, the majority reasoned that mitigation evidence from lay witnesses who told of Miller’s troubled childhood was of the same strength and subject matter as new declarations Miller presented from three mental-health experts. Judge White argued in dissent, however, that the expert declarations were substantially different because they explained how Miller’s childhood affected him mentally – a topic the lay witnesses were not qualified to address.

The second point of disagreement—whether Miller diligently pursued his Rule 60(b) motion—gets complicated fast.

Rule 60(b)(6) is a "break glass in case of emergency" provision. It allows relief after final judgment in "exceptional or extraordinary circumstances where principles of equity mandate relief." In other words, if some sort of gross injustice has occurred, the court can revisit the case. The motion must be made "within a reasonable time."

Last year's decision in Buck v. Davis gave Rule 60(b)(6) newfound weight. Specifically, Buck decided the rule provided a potential path to revisit a death sentence in the wake of Martinez and Trevino, two decisions that removed potential procedural barriers to habeas claims.

Miller tried the same move, arguing that Martinez and Trevino allowed him to pursue relief under Rule 60(b)(6). The problem, as the majority saw it, was that Miller took too long to file his claim.

The majority dove into the weeds on the timing of Miller raising his claim, ultimately finding an inexcusable 16-month gap. The majority's math is mindbendingly complicated (think Speedy Trial Act calculations). I'm putting my attempt to explain it in italics, in case you want to skip right to the dissent's view: 
Martinez came out while Miller's initial habeas case was in the Sixth Circuit, and he didn't raise it in the Sixth or in his cert petition. In fact, it wasn't until 18 months after Martinez that he moved for Rule 60(b)(6) relief. Although the Sixth Circuit held a year later (in a case named Hodges) that Martinez didn't apply to cases like Miller's, the Sixth Circuit reasoned that Miller had a full year (12 months) to raise a Martinez-related claim. Moreover, Trevino (which called Hodges into question) came out 4 months before Miller filed his claim. The majority added the 12 months (between Martinez and Hodges) and the 4 months (after Trevino) to arrive at 16 months.
The dissent wasn't having it. In Judge White's view, the proper starting point was simple: Trevino made it clear that Miller could seek relief, and Miller filed his motion 4 months after Trevino. By acting within four months, Judge White said, Miller was appropriately diligent.

I suppose this is a cautionary tale. Follow Supreme Court cases closely and raise potential new claims even if you think they might be barred under current Sixth Circuit precedent.

Sixth Circuit quickly granting oral argument

The Sixth Circuit is sending notices of oral argument much faster than it used to. I just received notice for one less than a week after submitting my reply brief (with argument scheduled during the March sitting). You may do well to check the Court's oral argument calendar and submit any dates you are not available the same day you submit your brief.

Monday, January 08, 2018

Harsh result for drug offender who missed FSA reduction in mandatory minimum by a single day

The Sixth Circuit today rejected a drug offender's attempt to get relief under the Fair Sentencing Act's reduction in mandatory minimums.

On August 2, 2010, Eugene Downs had a sentencing hearing at which the district judge announced a 10-year sentence, the mandatory minimum for distributing more than 50 grams of crack cocaine. The very next day, President Obama signed the Fair Sentencing Act, halving this mandatory minimum to just 5 years, effective August 3. The district court entered its judgment on the docket 13 days later.

All of Downs's codefendants received the benefit of the Act because their sentencings happened later.

Downs moved to vacate his sentence, arguing that he wasn't "sentenced" until entry of the judgment. Unfortunately, however, federal law essentially uniformly recognizes that a district judge’s announcement of a sentence in open court is the official "date of sentencing." So, says the Sixth Circuit, Downs is out of luck – stuck with a 10 year sentence.

Downs tried to argue that his lawyer was ineffective for not seeking a continuance or seeking reconsideration. But the court reasoned that counsel couldn't be deemed ineffective for failing to foresee that the Act would apply retroactively to crimes committed before its effective date. And, the court reasoned, a motion to reconsider would've been futile.

As William Gaddis wrote: "Justice? You get justice in the next world. In this one you have the law."

Read the opinion here.

Thursday, January 04, 2018

Court rebuffs a Second Amendment challenge to 18 U.S.C. § 922(g)(9)

Mr. Stimmel went to Walmart to buy a firearm.  But Wally World put on the brakes - Stimmel had an Ohio misdemeanor conviction for domestic violence, which prevented him by federal law from owning a firearm.  Stimmel then filed suit, arguing that 18 U.S.C. 922(g)(9) violated his Second Amendment right to bear arms.

"The gravamen of Stimmel’s appeal to this court is a question of first impression in our circuit: whether the firearm restriction, 18 U.S.C. § 922(g)(9), unconstitutionally burdens his Second Amendment rights. We hold that it does not."  The Court held that the Government had failed to prove that historically, those that committed domestic violence were prohibited from the possession of firearms.  However, the Court found that " it is reasonable to conclude that domestic abusers have high recidivism rates, pose a continued risk to their families, as well as law enforcement, are more likely to kill their victims when armed, and should therefore be disarmed. In accord with the unanimous view of those circuits that have addressed the question, we conclude the fit here is, at least, reasonable. Section § 922(g)(9) survives intermediate scrutiny."

Judge Boggs dissented, finding that the Government had failed to meet its burden of proof as to the continued risk of persons such as Stimmel so as to justify a lifetime ban.  " Because the government has offered, at best, minimal evidence that a non-recidivist domestic violence
misdemeanant presents a heightened risk of reoffending decades after his or her conviction, it has yet to justify what is, effectively, a lifetime ban on a fundamental constitutional right."

The opinion can be found here

Friday, December 22, 2017

Establishing the fundamentals of VICAR racketeering prosecutions

At the government's request, the Sixth Circuit has published its previously unpublished decision in United States v. Odum, an appeal (after a multi-defendant jury trialby two members of the Phantom Motorcycle Club. The decision is important because it sets forth several basic propositions of law regarding violations of the violent crimes in aid of racketeering activity statute, 18 U.S.C. § 1959 (aka, "VICAR")

The government frequently seeks to prosecute these types of "outlaw motorcycle clubs" for racketeering offenses by arguing the "club" is a "criminal organization" for purposes of the criminal RICO statute.

"An advantage of VICAR over RICO," according to the National District Attorney Association, "is that VICAR requires only one criminal act to be proven, provided that it is violent and is carried out for personal monetary gain or for status within a gang."

In moving to publish, the government argued that the Odum opinion establishes "two significant points" about VICAR for which there was previously no published law in the Sixth Circuit.

First, the opinion relied on a Second Circuit case (dating back to 1992) to set forth five elements the government must prove to establish a VICAR offense:
  1. that the Organization was a RICO enterprise,
  2. that the enterprise was engaged in racketeering activity as defined in RICO,
  3. that the defendant in question had a position in the enterprise,
  4. that the defendant committed the alleged crime of violence, and
  5. that his general purpose in so doing was to maintain or increase his position in the enterprise.
Second and likely the primary reason the government sought publication is that the court held that the government does not have to prove that the defendant actually knew that the enterprise was engaged in racketeering to establish a VICAR offense. The court reasoned that "grafting [a] knowledge-of-racketeering requirement onto the statute would allow acts contemplated by VICAR to escape prosecution under the statute." For example, if so interpreted, "VICAR might not cover an individual who commits a violent crime as a part of gaining entry to a gang but who does not have specific knowledge of the group's racketeering activities." Additionally, the court emphasized that "[s]everal courts have explicitly applied RICO's 'liberal construction' rule to VICAR, as VICAR was enacted for a similar remedial purpose."

As an interesting aside, this is the third time since I starting writing for this blog a couple of years ago where the U.S. Attorney's Office for the E.D. Mich. has moved to publish favorable decisions (see also here and here). This may be a tactic to borrow given the frequency of unpublished decisions in the Sixth Circuit.

Wednesday, December 20, 2017

Mandates matter

Today's opinion in Luke Patterson's second appeal showcases an unfortunate situation in which the appeal mandate made a big difference. The case breaks down into four rounds.

In Round One – Patterson's initial sentencing – he avoided the 15-year mandatory minimum under the Armed Career Criminal Act because the trial court refused to treat his prior Ohio aggravated burglary convictions as "violent felonies."

But in Round TwoPatterson's first appeal  the government cross-appealed, and the Sixth Circuit ultimately agreed that Patterson should've been sentenced under ACCA. The court's mandate said that it "reverse[d] the ruling that Patterson did not have three previous convictions for a violent felony, vacate[d] Patterson's sentence, and remand[ed] for re-sentencing."

In Round Three – Patterson’s re-sentencing – Patterson argued that his three offenses should instead be treated as one for purposes of ACCA. But the trial court felt itself constrained by the Sixth Circuit’s mandate, and imposed the 15-year mandatory minimum.

Which brings us to Round Four – Peterson's second appeal, which prompted today's decision in United States v. Patterson, No. 17-3706

In this second appeal, Peterson argued that the trial court erred in refusing to consider his "single offense" argument on remand. But the Sixth Circuit disagreed, relying on the two components of the "mandate rule" from United States v. O'Dell, 320 F.3d 674 (6th Cir. 2003)
  1. The mandate from the first appeal permitted only a limited remand, not a remand where Patterson could again challenge his ACCA designation.
  2. Patterson could not re-raise on remand an issue ripe for review during his initial appeal.
The Sixth Circuit, "out of an abundance of caution," also decided that the "single offense" argument lacked merit.

The court's strict application of the rule from O'Dell highlights the (somewhat daunting) importance of raising issues on appeal that may be at play if the case is remanded.

Saturday, December 16, 2017

How can municipalities collect unpaid taxes on property subject to criminal forfeiture?

What happens when a municipality wants to collect unpaid taxes on property subject to criminal forfeiture?

The Sixth Circuit dove into that surprisingly complicated question this week in United States v. Hall, No. 16-6512.

Knox County, Tennessee, asserted a first-priority lien for delinquent property taxes on George Hall's property after he agreed to forfeit the property as obtained with the ill-gotten proceeds of an illegal gambling scheme. The County asked the court to, among other things, (1) hold a hearing to adjudicate the County's interests, (2) order the interlocutory sale of the property, and (3) delay the final order of forfeiture until the property could be sold.

The government told the court that its standard practice was to pay these sorts of taxes but only up until the date the government took title to the property. The government objected to delaying entry of the final order (and to the levying of taxes during any such delay), arguing that it would allow the County to circumvent the ban on local municipalities levying taxes on federal properties.

The district court denied the County's requests altogether -- for lack of standing. First, it held that the County lacked standing to ask for ongoing taxes because as soon as the court entered the final forfeiture order, the County had no legally cognizable interest in the taxes accruing on property owned by the federal government. As to back taxes, the court also held that the County lacked standing because the government had already promised to give the funds to the County, and thus the court couldn’t offer any redress to the County.

The Sixth Circuit wasn’t impressed, finding that the "district court’s approach falter[ed] on several levels." Among other things, the County's assertion of an interest in tax revenue was enough to establish standing. Moreover, contrary to the district court’s conclusion, "any number of court orders would likely redress the injury Knox County would suffer if its tax lien were not satisfied."

The Sixth Circuit pointed to a better approach: "Rather than resolving this case at the jurisdictional stage, the district court and the parties should have followed the procedures set forth in 21 U.S.C. § 853(n) and the Federal Rules of Criminal Procedure" (particularly Rule 32.2).

Ultimately, the Sixth Circuit required a re-do, vacating the forfeiture order and remanding the case for further proceedings to determine "the scope of Knox County's legal interest." The court also concluded, however, that the district court did not abuse its discretion by refusing to require the interlocutory sale of the property. It emphasized the wide discretion granted to district courts in determining whether such sales are appropriate.

Along the way to its decision, the Sixth Circuit laid out several substantive and procedural tips on how this process should proceed, making this opinion a useful resource for anyone faced with a similar situation.

Photo courtesy: 401(k) 2012