Monday, July 27, 2015

A bumper crop of opinions

Some days -- and even weeks -- you have to dig pretty hard to find a case that addresses an interesting issue in criminal law in the Sixth Circuit. Other days, such as last Friday, the corn is as high as an elephant's eye. And while everything did not go the way of the defendants of the world, some of the opinions were pretty good. With apologies for the rather cursory discussion, here's what you missed if you took a long weekend:

United States v. Detloff -- A nice win out of the FPD's office in Ohio on a supervised release issue. The Sixth Circuit found itself reminding district courts (and the government, and the appellant's original counsel) that Michigan's resisting arrest statute (Section 750.81d(1)) is not categorically a violent offense. The opinion also helpfully reminded the district court that the guidelines are not mandatory and do not require the supervised-release sentence to run consecutively to his other sentence.

United States v. Randolph -- Practitioners trying to raise arguments about juries' "inconsistent verdicts" run into a whole host of troubles, but not here. The jury found Mr. Randolph guilty of a conspiracy to manufacture or distribute drugs. But when the jury-form required the jury to indicate the quantity of the drugs that were involved in the conspiracy, the jury checked the box for "none" beside each illegal substance, thus suggesting that there were no drugs involved in the conspiracy. The Sixth Circuit ruled that this was not merely an "inconsistent" verdict between multiple counts, as the court has previously addressed. Rather, it was a mutually exclusive verdict within the same count that "reveal[ed] that the government failed to prove an essential element of the charged drug conspiracy," which was a matter of first impression for the court. The court also refused to remand for a new trial, instead remanding for entry of a judgment of acquittal. It explained that to do otherwise would subject the defendant to double jeopardy.

United States v. Bah -- "This case addresses whether an individual has a reasonable expectation of privacy in the magnetic strips on credit cards." (Somehow when an opinion from Judge Rogers, McKeague, and Sargus starts this way, you get the creeping feeling that the answer is going to be "no.") In answering that question in the negative, the court reasoned that the Supreme Court's recent opinion in Riley v. California is not applicable because credit cards do not contain as much information as cellphones. It also held that there was nothing wrong with the traffic stop that led to the search of the credit card. This part of the opinion offers the frustrating reminders that (1) Arizona v. Gant can be pretty toothless if officers just mumble the words "inventory search" at some time during the proceedings, and (2) Rodriguez v. United States doesn't get you very far in challenging prolonged stops (but then, we already knew that).

And finally, United States v. Soto presents a whole host of issues, most of which remind us that it is bad to be on the receiving end of federal charges alleging drugs, kidnapping, and firearms. Perhaps most interestingly, there is a long discussion of whether an appellant can raise a district court's failure to sever claims for the first time on appeal (yes, absent an "intentional relinquishment of the right") and under what standard of review (plain error).

Thursday, July 16, 2015

No reasonable suspicion BUT consent saved the day!!

In United States v. Lee, the Sixth Circuit held that a tip that there were possible weapons at a parolee's house was insufficient to provide reasonable suspicion to allow a search of the residence.  Under the Court's "parolee search" precedent, officers may search a parolee's home without a warrant if they have reasonable suspicion of criminal activity.  Here, the Court found that the tip that weapons were present in Lee's home was from an unknown source, passed through multiple layers of hearsay, and therefore could not provide a basis for the search.

However, the Court found that the defendant's own actions saved the otherwise impermissible search. When officers arrived at the apartment, they asked Lee whether there was anything in the apartment that Lee should not be possessing.  Lee responded with "No go ahead and look"; which the Court found provided all the basis required for the search.

Sunday, July 12, 2015

Intent to Threaten? An Update

The Sixth Circuit, in an opinion written (perhaps coincidentally) by Judge Sutton, reversed a conviction for transmitting threats in interstate commerce (18 U.S.C. § 875(c)) because the judge instructed the jury that it needed only to find negligence and not that the defendant had some level of intent or awareness of wrongdoing. As discussed in the June 2 post, the Supreme Court (citing issues previously raised by Judge Sutton) found that negligence is insufficient to establish culpability. In United States v. Houston, No. 14-5295 (6th Cir. July 9, 2015), Judge Sutton noted that the defendant’s “recorded diatribe . . . could plausibly [cause the listener to] think one of two ways about it. One possibility is that he meant just what he said, creating liability no matter what the standard is. The other possibility is that the recording caught him in a fit of rage in a prison cell (where he was in no position to act on his thoughts and where he did not necessarily know anyone other than his girlfriend was listening).” Under such circumstances, a jury instruction permitting a conviction for negligence led to reversible error (even under the plain error standard).

The Sixth Circuit did not determine the appropriate mens rea standard in the Houston decision. Notably, however, the Government proposed a recklessness standard—which the Sixth Circuit avoided addressing in the first instance as part of its harmless error analysis.

In reversing the conviction, the Sixth Circuit rejected Houston’s challenge to the sufficiency of the evidence—that the Government offered insufficient evidence to establish Houston’s mental state. The Court held that it would be unfair to require the Government to introduce evidence of an element not included in the jury instructions. In other words, the Court judged Houston’s sufficiency challenge not on the legal elements of the charge, but on the elements of the charge as instructed to the jury. It remains to be seen whether the charging instrument is sufficient to support a criminal conviction.

Wednesday, July 08, 2015

Residual Clause of Career Offender Enhancement Void for Vagueness

Building on the Supreme Court's decision that the residual clause of the ACCA is void for vagueness, the Sixth Circuit struck down the residual clause of the career offender enhancement. In a per curiam decision, the Court recognized that it had "previously interpreted both residual clauses identically." And it noted that the Supreme Court vacated sentences involving the career offender enhancement after deciding Johnson. Only enumerated offenses may now be used to apply either the ACCA or the career offender enhancement. 

Following Johnson, Congress and the Sentencing Commission will need to decide whether to substitute a more extensive list of qualifying offenses rather than rely on amorphous descriptions of possible candidate offenses. But if such a list yet requires any judicial factfinding, then that list may be subject to Sixth Amendment concerns (as reiterated by Justice Thomas in his concurring opinion).

Sunday, June 21, 2015

Using Access Devices: the Sentencing Challenge

The Sixth Circuit has twice rejected challenges to the Government’s proof of usability of an unauthorized access device at sentencing (determined under U.S.S.G. § 2B1.1). In both cases, defendants, relying on United States v. Onyesoh, 674 F.3d 1157 (9th Cir. 2013), argued that the Government must establish the “usability” of an access device when calculating loss. In Onyesoh, the Ninth Circuit held that the usability of some access devices may not be readily apparent. There, the Government conceded that “credit card numbers that had expired 35 years ago and were useless . . . would not be covered under the statute.” Id. at 1160. Given that concession and after searching the record, the Ninth Circuit found no evidence to support the usability of certain credit card numbers that “had been expired for some three years” and “no showing Defendant ever took steps or attempted to use the expired numbers.” Id.

In United States v. Vysniauskas, 11-2503 (6th Cir. January 7, 2015), the Sixth Circuit nominally assumed without deciding that the Government must establish usability consistent with Onyesoh. Like Onyesoh, Vysniauskas challenged only the addition of certain access devices in the computation of his sentence. But unlike Onyesoh, the Sixth Circuit did not require any evidence of the usability of the challenged access devices. Instead, the Sixth Circuit relied on the district court’s finding that the challenged access devices were associated with the overall fraudulent scheme because “they helped provide a cover of ordinary activity that lowered the banks’ suspicions of the fraudulent withdrawals.” Vysniauskas at 16. The Sixth Circuit held that such evidence justified the inclusion of those access devices when determining the appropriate loss calculation.

In United States v.Beuns, 14-3326 (6th Cir. June 8, 2015), the Sixth Circuit again assumed without deciding the validity of Onyesoh. In Beuns’ sentencing memorandum, he conceded that he had “embossed and encoded [the contested numbers] on plastic cards,” then “attempted to purchase merchandise with the counterfeit cards.” Beuns at 5. That concession was fatal to Beun’s argument even under Onyesoh.

In Beuns, the panel also expressed some reservation about the validity of Onyesoh by noting that the Ninth Circuit subsequently upheld a sentence (in an unpublished decision) on apparently less evidence than Onyesoh would require. See UnitedStates v. Tien Troung Nguyen, 543 F. App’x. 715 (9th Cir. Cal. 2013). But there is no evidence from the Nguyen decision that the Ninth Circuit considered Onyesoh. Just as the Beuns panel did not cite Vysniauskas, the Nguyen did not cite Onyesoh.

The Onyesoh decision invites a fact-specific challenge to the calculation of unusable access devices when calculating loss at sentencing. Counsel should consider whether the Government has evidence of usability (or actual use) when presenting sentencing arguments and subsequently on appeal.

Friday, June 05, 2015

The plea agreement that wasn't

Let's say you committed a crime. Maybe it involved a fraud related to "antioxidant-rich whole food puree," or maybe it involved apocryphal gold bars supposedly buried by the Japanese during World War II, or maybe it involved both -- we're just spit-balling here. The government has you dead-to-rights, more or less, so you're going to plead guilty. They make you this offer: if you plead guilty (thereby relieving the government of its need to do more work on your bizarre case), they will agree to recommend to the court that you should receive a three-year sentence. If you hold up your end of the bargain and plead guilty, you would have reason to believe that the government would, in fact, make a good-faith effort to recommend a three-year sentence, right?

No. You would not. At least that's the Sixth Circuit's conclusion in the Reed opinion, published today. Rather than uphold the deal it had entered into, the government in this case told the district court how much of a liar Mr. Reed was and how many people he had injured. At the end of the sentencing hearing, just before the court was about to pronounce its sentence, the court stated that "the government has agreed pursuant to the plea agreement to recommend a three-year term of custody." Mr. Reed objected to the obvious: the government never actually had recommended a three-year term of custody. On cue, the government stated that it "recommended a three-year sentence," and Mr. Reed objected that this was too late. The district court rejected Mr. Reed's argument, stating that the prosecutor (who had just demonstrably failed to uphold his end of the bargain) was "unimpeachable"  and noting that the plea agreement itself constituted a recommendation. You heard that right: an agreement to do something actually means you did that thing. The court sentenced Mr. Reed to seven years' custody. Seven years, which is more than three.

In a published opinion, the Sixth Circuit denied relief. Thankfully, it rejected the district court's reasoning that an agreement to pay $10,000 for a car is the same thing as actually paying $10,000 for a car, noting that "[t]his might be a different story if the government had failed to make any recommendation outside the plea agreement itself." The opinion concludes that "[t]he prosecutor was obligated to fulfill his promise -- which he eventually did." The opinion further notes that "[t]he government never advocated for a sentence over three years," so Mr. Reed can take some consolation in that for the next seven years.

I will say what the Sixth Circuit did not say here: regardless of whether Mr. Reed's sentence should be upheld, the prosecutor should not have done this. The prosecutor's promise was as false as the Japanese gold bars from World War II, and prosecutors should be held to a higher standard than fraudsters.

Tuesday, June 02, 2015

Internet Threats—A Time Machine Reflection

To be convicted of threatening people, a defendant must intend to be threatening. Harkening to doubts expressed by Judge Sutton in his United States v. Jefferies dubitante opinion (covered by this blog in August 2012), the Supreme Court agreed that “[h]aving liability turn on whether a ‘reasonable person’ regards the communication as a threat—regardless of what the defendant thinks—‘reduces culpability on the all-important element of the crime to negligence.’” Elonis v. United States, No. 13-983, Slip Op. at 8 (June 1, 2015). Rejecting a negligence standard (and reversing the conviction), the Court left open the question of whether some degree of recklessness could meet the requisite scienter for conviction and did not address potential First Amendment arguments. Id. at 16-17.

          Both cases involved the liberal use of creative lyrics on social media accounts. The lyrics are included in the respective opinions (Judge Sutton describes Jefferies’ efforts as “part country, part rap, sometimes on key, and surely therapeutic”) and are worth review—particularly to lend insight on what can happen in a time of increasing use of social media and mobile access. Notably, “friends” or “followers” of the both defendants took the posts to law enforcement. Since the context of such posts will likely be instrumental in determining the mental state of future defendants, attorneys will need to understand content and access restrictions (if any) when addressing future cases.

And thus began the limiting of Rodriguez v. United States

It was only a little more than a month ago that the Supreme Court issued its opinion in Rodriguez v. United States, 135 S. Ct. 1609 (2015), holding that it is unlawful for officers to prolong a traffic stop beyond the time reasonably required to complete the purpose of the stop. But anyone expecting Rodriguez to dramatically reshape the caselaw landscape for suppression litigation was bound to be disappointed. Today's Zuniga opinion --- apparently the first in the Sixth Circuit to cite Rodriguez --- suggests that the Sixth Circuit is unlikely to use Rodriguez to justify suppression in many more traffic stops than it had previously.

Mr. Zuniga was driving a truck that passed a police car and then allegedly spent too much time between lanes while merging back. This was enough to constitute an "improper or unsafe lane change" and an "improper or unsafe lane usage," which are, evidently, crimes. Perhaps unsurprisingly, the traffic stop lasted longer than is normally required to issue a citation for an improper lane change. Indeed, it took thirty minutes, and it involved a dog, a drill, and a fiber-optic scope to view inside the vehicle's fuel tank. (Did we mention that Mr. Zuniga was Hispanic and driving a vehicle with out-of-state plates?) If you think this sounds a lot like the facts of Rodriguez, you're not that far off. But the Zuniga opinion's preferred method of sidestepping Rodriguez is to find that the officer was perfectly reasonable in prolonging stop because Mr. Zuniga (1) admitted to not being an undocumented immigrant, (2) took too long in pulling over, (3) acted "nervously" in speaking with officers, (4) gave inconsistent responses regarding his travel plans, and, most damningly, (5) the FBI had received some information that a vehicle matching the description of Mr. Zuniga's truck was involved in drug activity. Thus, the officer "had reasonable suspicion to extend the stop for further investigation."

This result is not entirely surprising under the facts of this case, but it suggests that the circuit courts will take a limited view Rodriguez's holding, and it certainly hints at where Rodriguez litigation will focus in the district courts.