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some reservation about the validity of Onyesoh by noting that the Ninth Circuit subsequently upheld a sentence (in an unpublished decision) on apparently less evidence than Onyesoh would require.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.

Thursday, May 21, 2015

Limiting the "Private Search Doctrine" for Computers

Yesterday, the Sixth Circuit reigned in the "private search doctrine" as applied to computer searches. United States v. Lichtenberger, No. 14-3540. According to Orin Kerr at The Volokh Conspiracy, the opinion creates a circuit split and "may be the next computer search issue to make it to the Supreme Court."

Under the private search doctrine, if a private party conducts a search, without the participation or encouragement of law enforcement, then the private party may show police what was found during the private search. See United States v. Jacobsen, 466 U.S. 109 (1984). Police may not, however, exceed the scope of the private party's initial search without first obtaining a warrant. In fact, an officer must have a "virtual certainty" that the officer's inspection will not reveal more than the private party's search.

In this case, the defendant's girlfriend searched his personal computer and found child pornography. She then contacted police and showed an officer some of the images on the computer. Critically, the girlfriend testified at a suppression hearing that she was not sure whether she showed the officer the same images she saw during her initial search.

As Kerr explains, before Lichtenberger, the Fifth Circuit held that, when a private party views even a single file on a computer disk, the police may inspect all content on the disk without a warrant. The Seventh Circuit followed the same course.

Relying on Riley v. California, however, the Sixth Circuit noted that courts must balance the government's interest in a search against the defendant's privacy interest, and that "the nature of the electronic device greatly increases the potential privacy interests at stake, adding weight to one side of the scale while the other remains the same." This change, the court decided, "manifests in Jacobsen's 'virtual certainty' requirement." The court then held that the officer lacked the necessary certainty here since neither he nor the girlfriend could confirm if he viewed the same files from the initial search. The court thus upheld the suppression of evidence from the search.

The opinion maintains that the Sixth Circuit's approach is consistent with that of the Fifth and Seventh Circuits. Kerr argues that this isn't the case because, although the courts applied the same test, they used "different units" to measure the scope of the search: the whole device, versus a file- or data-based approach. There is a current petition for certiorari from an Eleventh Circuit decision raising this issue.

Wednesday, May 06, 2015

The Right to Parent and Restrictions on Associating with Minors

In United States v. Widmer, No. 13-6283, the Sixth Circuit considered special conditions of supervised release that prevent a defendant from associating with minors without first receiving written permission from his or her probation officer. Mr. Widmer was convicted of possessing child pornography and given a special condition that required him to seek his probation officer's written permission if he wanted to associate with anyone under eighteen. Because Mr. Widmer is the parent of a minor daughter, he challenged the restrict - in part - by arguing it was a constitutional deprivation of his fundamental right to parent and associate with his family. He also argued that the condition did not advance a rehabilitation or safety interest and was either not merited by the record or not supported by a sufficient explanation from the judge.

The Widmer Court noted the right to family life is protected by the Fourteenth Amendment but is not absolute. Rather, special conditions of supervised release that implicate parental rights require explicit consideration by the sentencing court, as they are more intrusive to the individual. The sentencing judge below explicitly addressed the association restriction and its application to Widmer's minor daughter. In reviewing the district court's reasoning, the Widmer court held, "Although Widmer asserts that the association restriction is not narrowly tailored because it affects his association with his own child, it is clear that the restriction is tailored for the precise purpose of protecting Widmer's daughter."

Although Widmer asserted his crime of possessing child pornography was passive, the Sixth Circuit stated that Widmer's disregard for the welfare of the children depicted suggested otherwise. In sum, the Widmer court found that the district court was in its discretion to impose the special condition. The decision also provided a standard procedural reasonableness analysis of the district court's explanation at sentencing.

Wednesday, April 29, 2015

Cell Phone Search Warrants

The Sixth Circuit agreed this week to publish United States v. Bass, No. 14-1387, originally issued as an unpublished decision. In the decision, the court affirms the denial of a motion to suppress a cell phone search. The government urged publication on the basis that “case law applying the contours of Fourth Amendment search and seizure law to cell phones in this circuit is scant.”

The government charged Bass with masterminding an identity-theft ring using credit-card account takeovers. Before Bass’s arrest, law enforcement uncovered “that phone numbers linked to Bass had been used in several account takeovers.” Police then seized Bass’s phone when they arrested him at his mother’s residence. Before gaining entry to the home, police observed him typing on the phone, and when Bass eventually opened the door, he “was arrested with his burgundy Kyocera Torino cell phone still in hand."

The officers obtained a warrant before searching the phone. The affidavit stated that police suspected Bass of crimes in which “cell phones were frequently used by conspirators to text or call each other during the times that the fraudulent activity was taking place,” and that Bass had used the phone at his arrest, “possibly attempting to alert other conspirators of [his] arrest.” The search warrant “authorized the search for any records of communication, indicia or use, ownership, or possession, including electronic calendars, address books, e-mails, and chat logs.” During the search, an officer turned on the phone and obtained its number, which matched with one used during account takeovers.

Bass argued that the search affidavit (1) lacked probable cause, (2) failed to show that his particular phone contained evidence, and (3) was overbroad.

The Sixth Circuit concluded that the affidavit showed a fair probability that the cell phone contained co-conspirator contacts and had sufficient detail to tie this phone to Bass’s offense, particularly since it identified the phone as obtained at his arrest. As for the overbreadth argument, the court decided that, even though the officers could not have known where within the phone, or in what format, the evidence would be, the scope of the warrant was reasonable given that criminals using modern electronic devices often seek to conceal evidence of their criminal activity. For support, the court primarily relied on United States v. Richard, 659 F.3d 527(6th Cir. 2011), which addressed computer searches.

The court also denied Bass a new trial based on the recantation of a witness’s testimony and rejected his challenge to his statutory maximum prison sentence of 264 months.

Tuesday, April 21, 2015

Duplicity and Unanimity Instructions

United States v. Eaton, decided on April 20, 2015, is an appeal from the conviction of former Barren County (KY) Sheriff Christopher Eaton.  The case stems from the arrest and beating of Billy Stinnett in 2010.  Eaton and three sheriff's deputies were charged with excessive force; Eaton was also charged with witness tampering and obstruction of justice.  Eaton was convicted only of two counts of witness tampering.

The most interesting issue raised on appeal regards whether the trial court erred in failing to give a unanimity instructions as to one of the witness tampering counts.  Eaton argues that the proof at trial left the jury with the ability to find that Eaton had committed witness tampering in one of two ways (lying about excessive force or lying about whether Stinnett had a weapon).  Eaton's trial counsel didn't request such an instruction, so on appeal, Eaton was stuck with plain error review.

The court's decision suggests that even had the error been preserved, Eaton would have lost the review.  The panel reiterated the distinction between jurors being unanimous as to elements and jurors being unanimous as to facts.  Citing Richardson v. United States, the court holds that Eaton's case implicates only the "brute facts" underlying the statutory elements; thus, a unanimity instruction was not required.