Friday, March 16, 2018

Sixth Circuit again considers what is a "crime of violence" under the Guidelines

“This case returns us to the serial litigation over the meaning of the terms ‘physical force’ and ‘crime of violence.’” So begins the opinion in United States v. Morris in which the Sixth Circuit held that a felony conviction for domestic assault under Michigan law (M.C.L.) §750.81 is a crime of violence under the residual clause of the Guidelines. U.S.S.G §4B1.2(a)(2).

Melvin Morris was sentenced before Amendment 798 took effect and the Sentencing Commission removed the residual clause from §4B1.2 of the Guidelines. The district court determined that Mr. Morris was a career offender and on appeal he argued that his two prior felony convictions for domestic assault under M.C.L. §750.81 were not crimes of violence.
Since an offense under M.C.L. §750.81 is not an "enumerated offense" (§4B1.2(a)(2)), the Sixth Circuit considered whether the prior convictions were crimes of violence under the “elements clause” (§4B1.2(a)(1)), or the “residual clause.” (§4B1.2(a)(2)).The court concluded that Michigan’s domestic violence statute is not a crime of violence under the “elements clause” because “a person can commit a battery by mere offensive, but not harmful, touching of a victim’s person or of ‘something closely connected with’ the victim’s person.” Moreover, the “offensive touching can be accomplished without using force capable of causing physical pain or injury.”

In deciding whether the Michigan statute fell within the “elements clause,” the Sixth Circuit rejected the Government’s argument that the definition of “physical force” in §4B1.2(a)(1) should be given the meaning expressed in United States v. Castleman, 134 S.Ct. 1405 (2014). That case involved 18 U.S.C. §922(g)(9), which prohibits a person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. A “misdemeanor crime of domestic violence” is defined in part as a crime that “has, as an element, the use or attempted use of physical force.” 18 U.S.C. §921(a)(33)(A)(ii). The Supreme Court held in Castleman, 134 S.Ct. at 1410, that for the purposes of  §922(g)(9), “Congress incorporated the common-law meaning of ‘force’—namely, offensive touching—in [the statute’s] definition of a ‘misdemeanor crime of domestic violence.’”  With that in mind, the Government argued that same meaning should be used for “physical force” in Mr. Morris’ case.

The Sixth Circuit observed, however, that Castleman “directly addressed the propriety of different definitions of ‘physical force’” and the Supreme Court noted that domestic violence statutes are unique in the sense that “the word ‘violent’ or ‘violence’ standing alone ‘connotes a substantial degree of force’ but that is not true of domestic violence which “encompass[es] acts that one might not characterize as ‘violent’ in a nondomestic context.” For that reason, the definition of “physical force” in §4B1.2(a)(1) is not interpreted in the same way as it is for the purpose of defining a “misdemeanor crime of violence” in 18 U.S.C. §922(g)(9).

The government wanted the term “physical force in §4B1.2 to be given “a different definition depending on the prior conviction[.]” If the prior conviction is for domestic violence, then “physical force” should have “the broader common law meaning, which includes ‘offensive touching.’” However, that approach to construing §4B1.2 is “incongruent” with the Sixth Circuit’s consistent determination that the definition of a “crime of violence” in §4B1.2(a)  is applied in the same way as the definition of “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e)(1). Thus, the court concluded that the Michigan statute under which Mr. Morris was convicted was not a “crime of violence” under the “elements clause” of §4B1.2(a)(1).

Turning to whether the Michigan statute is a “crime of violence” under the “residual clause” of the Guidelines (§4B1.2(a)(1)), the Sixth Circuit noted that the statute is not divisible and the categorical approach is used to determine if an offense presents “a serious potential risk of physical injury to another.” The Michigan statute meets that standard because “[i]n the context of a face-to-face incident of domestic violence, there is a serious risk of physical injury” and “domestic violence poses an unusual risk of escalation.” The offense is therefore a “crime of violence” under the “residual clause” of the Guidelines.      


Friday, March 09, 2018

The vagaries of prosecutorial misconduct

Prosecutorial misconduct is a shifting, amorphous concept. The test --- whether the statements were (1) improper, and (2) flagrant --- requires the court to apply not one but two highly subjective terms, both of which are themselves defined by multi-factor tests. Then there is another test for whether improper-but-not-flagrant conduct should result in reversal. All of this is filtered through a natural bias toward upholding convictions, resulting in a legal objection that is difficult to apply and a claim on appeal that seems unlikely to prevail.

Yesterday's unpublished opinion in United States v. Demetrius Joiner is unlikely to change prosecutorial misconduct's reputation as a difficult claim. But it does provide a nice refresher on possible objections that defense counsel can make at trial. Mr. Joiner was convicted of being a felon in possession of a firearm, and his trial defense was that he never actually possessed the weapon. His case was close, resulting in a mistrial followed by a second trial at which he was convicted. He raised four objections to potentially improper statements by the prosecution:

The prosecutor asked Mr. Joiner to comment on the credibility of the government's witnesses. Mr. Joiner testified that he had not stolen the firearm in question, contrary to assertions by the government's police-officer witnesses. The government then asked whether Mr. Joiner was "saying here to the jury that [the officers] lied on that day," and "do you believe that [the officers made this up on you?" These questions were "improper," because it is the jury's job to judge the credibility of testimony, not the witness's. Such questions are only appropriate where a defendant actually testifies that someone else is lying, which did not occur here. Although improper, these questions were not "flagrant," largely because the court considered the whole trial to be "a credibility contest between Joiner and the officers," and thus, presumably, the jury was already primed to consider this question.

The prosecutor improperly vouched for the officers' credibility. In examining the officers, the prosecutor asked whether they had any bias against Joiner or any reason to falsely accuse him of lying." During closing arguments, the prosecutor told the jury that the officers had no motivation to lie. This was not improper. The prosecutor did not state that he "personally found the officers to be credible," nor did he suggest that "he knew facts regarding the officers' credibility that were not revealed to the jury."

The prosecutor made improper statements regarding Mr. Joiner's credibility during his closing argument. The prosecutor told the jury at closing that Mr. Joiner lied and would "lie to you about anything to get out of this situation." These statements were improper. A prosecutor may only tell the jury that a defendant is a liar if the prosecutor references specific evidence or testimony produced at trial, emphasizing discrepancies between the defendant's testimony and the record. Although improper, the statements were not flagrant. Here, the panel suggests that a defendant would have difficulty ever winning such a claim, because the reason it is not flagrant is that there is not much difference between saying someone is a liar and saying that the evidence suggests someone is a liar. Why then consider this improper in the first place?

The prosecutor improperly shifted the burden of proof by implying that Mr. Joiner was obligated to produce a certain witness at trial. On cross examination, the prosecution asked Mr. Joiner where a potentially exculpatory witness was, and noted that the witness was not there to make a certain admission. At closing, the prosecutor asked the jury a similar question. These questions were not improper, because a prosecutor is free to comment on the failure to call a witness so long as the prosecutor does not "suggest that the defendant had the burden of proof or any obligation to produce evidence to prove his innocence."

Faced with two improper-but-not-flagrant actions by the prosecutor, the panel declined to overturn the conviction. But although these objections did not carry the day for Mr. Joiner, they may benefit future defendants.

Monday, February 26, 2018

Aggravated Identity Theft Statute – Don’t Judge the Statute by Its Title

The Sixth Circuit recently studied 18 U.S.C. § 1028A(a)(1) and questioned the meaning of using someone else’s “means of identification.” 
 In United States v. Michael, 17-5626, Philip E. Michael worked as a licensed pharmacist in West Virginia and co-owned pharmacies in West Virginia and Pennsylvania.  The government suspected he used the pharmacies to illegally distribute on-demand prescriptions over the internet. The prescriptions were worth more than $4 million. He was indicted with other defendants, and one of the counts alleged he committed aggravated identity theft by “using the ‘identifying information’ of a doctor and a patient ‘in relation to the [health care fraud] offense.’”  The basis for the charge was that he submitted a claim for payment to an insurance provider indicating that a doctor prescribed a drug to a specific patient.  Included with the claim was the doctor’s National Provider Identifier, and the patient’s name and date of birth.  In reality, the doctor did not treat the patient or prescribe the medication.
Prior to trial, Michael argued that §1028A requires a person to “assume the identity” of someone else, but he acted “under his own name as the dispensing pharmacist.”  The district court agreed and dismissed this particular count and the government appealed.
Michael did not dispute that the doctor’s identifier or the patient’s name and date of birth are a “means of identification.”  He also did not argue that his use of this information was with lawful authority.  The sole issue before the Sixth Circuit was whether he transferred, possessed, used the “means of identification” even though he did not pretend to be the doctor or patient.  
The Sixth Circuit analyzed the many uses of “use” and “uses” and determined that “the question is whether the defendant used the means of identification “during and in relation to” the predicate felony.  The Court found the defendant used the identifying information of the doctor and patient “to fashion a fraudulent submission out of whole cloth, making the misuse of these means of identification “during and in relation to”- indeed integral to – the predicate act of healthcare fraud.”   
Michael argued that the title “Aggravated Identity Theft” for §1028A suggests that ‘uses’ refers only to scenarios that a defendant assumes another’s identity.  However, the Sixth Circuit reasoned that “just as it is dangerous to judge a book by its cover, it is dangerous to judge a statute by its title.”  Finding that the indictment contained the elements of the offense charged, the Court reversed the district court’s decision and remanded for proceedings. 

Wednesday, February 14, 2018

Higdon: A Short Violent-Felony Opinion that Packs a Punch

Appearances can be deceiving. It’s easy to read United States v. Higdon as a case that answers a narrow question: whether a North Carolina offense is a “violent felony” under the Armed Career Criminal Act’s definition. Higdon actually does much more and provides a nice outline about the state of violent-felony jurisprudence after Johnson v. United States, which relieved us of the burden of interpreting the statute’s residual clause. Johnson has not the panacea federal public defenders hoped. Much of the analysis about whether a conviction is for a violent felony has shifted to the use-of-force clause: any felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). And that shift has created some inter- and intra-circuit fault lines.

Let’s get down the brass tacks. Daryl Lynn Higdon pleaded guilty to being a felon in possession of a firearm and was sentenced to the mandatory minimum term of imprisonment of 15 years.  The district court did so because Mr. Higdon had a 1984 conviction for discharging a firearm into an occupied structure in violation of N.C. Gen. Stat. § 14-34.1 (1981). North Carolina courts have identified five elements of this crime: (1) willfully and wantonly discharging (2) a firearm (3) into property (4) while it is occupied, and (5) the defendant had reasonable grounds to believe the property might be occupied.

The government abandoned any claim that the offense involves “attempted” or “threated” use of physical force, and so the only question the Sixth Circuit had to answer was “whether these elements, taken separately or together, require the ‘use . . . of physical force against the person of another.’” The court had little trouble concluding, “[p]lainly they do not[.]” Although the statute requires proof that force was used (discharging a firearm), it does not require that the force be “against the person of another.” No injury must occur.

Now it’s time for the good stuff: why is Higdon important? This case provides direction for the proper analytical approach to help determine whether convictions contain a use-of-force element. The court identified the four requirements of “violent felonies”: “(1) conduct giving rise to force (e.g., pulling a trigger on a gun); (2) certain consequences from that conduct (i.e., the application of “physical force against the person of another”); and two types of mens rea, namely (3) the conduct giving rise to the force be ‘volitional’ rather than accidental, and (4) the defendant be at least reckless as to the consequences of the conduct.” (citations omitted). Higdon clarifies that an offense cannot satisfy these requirements if the defendant had knowledge of the consequences, but did not actually cause them. The court also defined “force against the person of another,” adopting the following definition: the force must be applied to the victim’s person.

Also of note is the fact that Higdon’s author, Judge Kethledge, highlighted his lingering disagreement with Judge Sutton about whether a mens rea of mere recklessness is sufficient to satisfy § 924(e)(2)(B)(i)’s definition. We covered this dispute previously, and this is an issue will continue to divide circuit courts until the Supreme Court intervenes.

One final note: credit where credit is due. Congratulations to Jennifer Coffin of Federal Defender Services of Eastern Tennessee for her hard work on this case.

Friday, February 09, 2018

Sixth Circuit rules that defendant who volunteered to search the internet for information on a missing drug shipment can be held responsible for the shipment’s total weight

In United States v. Pablo Hernandez, the Sixth Circuit demonstrated the low threshold required for holding a defendant responsible for drugs distributed by a conspiracy.  Mr. Hernandez procured an abandoned warehouse to receive large shipments of marijuana from out of state.  In return for this service, the supplier agreed to pay Mr. Hernandez $5,000 per shipment.  After the supplier fell behind on his payments, he offered to give Mr. Hernandez two kilograms of cocaine to satisfy his debt.  These two kilograms were part of a larger 28 kilogram shipment.  However, Mr. Hernandez and his associates were not going to receive this shipment; instead, Mr. Hernandez needed only to pick up his two kilograms from the delivery location.

En route, the shipment went missing.  The supplier told Mr. Hernandez that he was concerned that police had seized the shipment, or that one of the supplier’s employees had stolen it.  Mr. Hernandez “then volunteered to get on the internet and see if he could find out what happened.”  Eventually, one of his associated informed him that the DEA had seized the shipment.

After Mr. Hernandez was arrested, he confessed to both his role in receiving the shipments of marijuana and his involvement with the 28-kilogram shipment.  He then pleaded guilty to the cocaine charges in exchange for the government’s agreement not to prosecute the marijuana offense.

At sentencing, Mr. Hernandez argued that he was responsible for only the two kilograms of cocaine he was set to receive.  More specifically, he argued that the remaining 26 kilograms were outside the scope of his agreement, and thus not relevant conduct.  The district court rejected this argument based on Mr. Hernandez investigating the missing shipment on the internet.  The district court ruled that his actions after the shipment had gone missing had “expanded his role in the conspiracy.”  The court also rejected Mr. Hernadez’s argument that he was a minor participant in the cocaine conspiracy. 

On appeal, the Sixth Circuit affirmed the district court’s rulings.  The court held that Mr. Hernandez’s investigation had expanded his role in the conspiracy, justifying holding him accountable for the full 28 kilograms.

The Sixth Circuit also affirmed the enhancement of Mr. Hernandez’s sentence based on maintaining a drug-premises.  The record showed that Mr. Hernandez had procured the abandoned warehouse for a marijuana shipment at least three times.   The court focused on Mr. Hernandez’s relationship to the abandoned warehouse during the deliveries, noting that he controlled the premises during these times.  Thus, despite the fact that Mr. Hernandez did not control the abandoned warehouse between deliveries, the enhancement applied.

Opinion available here.

Sixth Circuit holds that North Carolina robbery is a crime of violence under the residual clause of the guidelines

In United States v. Smith, the Sixth Circuit returned to its earlier holding that North Carolina robbery qualifies as crime of violence under the sentencing guidelines’ residual clause.  In 2014, the Sixth Circuit had decided this very issue in Mr. Smith’s case, holding that North Carolina robbery was a crime of violence under the residual clause.  However, in light of Johnson, the Supreme Court vacated that decision and remanded the case. 

After the Sixth Circuit ruled that the guidelines’ residual clause was void for vagueness, it remanded Mr. Smith’s case to the district court.  The district court then ruled that the robbery was a crime of violence under both the elements clause and the enumerated offenses clause.  While Mr. Smith’s appeal was pending, the Supreme Court decided Beckles, holding that the guidelines’ residual clause was—in fact—valid. 

Accordingly, when Mr. Smith’s case arrived before the Sixth Circuit again, the court decided to rely on its prior holding.  The court noted case law from the Fourth Circuit holding that North Carolina robbery is not a violent felony under the ACCA’s element clause, as well as a Fourth Circuit opinion holding that North Carolina robbery is a crime of violence under the guidelines’ enumerated offenses clause.  However, instead of analyzing the crime under either of these clauses, the court readopted its prior holding that North Carolina robbery is a crime of violence under the residual clause.  Since the career offender guideline no longer includes the residual clause, the question of whether North Carolina robbery qualifies as a crime of violence under the current guidelines will have to wait for another day.

Opinion available here.

LinkedIn evidence leads Sixth Circuit to remand case for Remmer hearing

In United States v. Talman Harris, social media evidence led the Sixth Circuit to remand a case for a hearing on extraneous influence on a juror.  While on trial for wire fraud, Mr. Harris received a notification that someone viewed his LinkedIn profile.  After the jury found him guilty, Mr. Harris logged in and discovered that a local college student had viewed his profile.  Further research revealed that this student was a juror’s live-in girlfriend.  Mr. Harris had no connection to the student, and his trial had not received publicity.

This evidence suggested that the juror violated the court’s instructions by discussing the trial with his girlfriend.  Additionally, the exclusion of certain evidence made this discovery especially problematic.  A licensing organization had investigated Mr. Harris and revoked his license.  The district court had excluded this evidence from the trial.  However, searching Mr. Harris’s name on Google brought up the investigation as one of the top results.  Mr. Harris’s LinkedIn profile was likewise among the top results.

Based on this evidence, Mr. Harris argued that the student had Googled his name and potentially shared prejudicial information with the juror.  Mr. Harris moved for a Remmer hearing to determine whether the juror had been exposed to the extraneous prejudicial information.  In the alternative, Mr. Harris sought permission to interview the juror and his girlfriend.

The district court denied both requests.  The court concluded that in “‘this age of the internet,’” the most likely scenario was that the juror’s girlfriend learned that he was seated as a juror, visited the court’s website, found the trial in progress, and continued her research by visiting LinkedIn, all without any communications with her boyfriend.

The Sixth Circuit vacated the district court’s judgment and remanded for a Remmer hearing.  The court noted that Mr. Harris had presented a colorable claim of extraneous influence.  Thus, although the district court had discretion in how to investigate the claim, it had abused its discretion by failing to hold an evidentiary hearing or allow Mr. Harris to investigate further. 

Opinion available here.

Thursday, January 25, 2018

Sixth Circuit Remands Sentence in § 924(c) Case in Light of Dean.

In United States v. Henry, the Sixth Circuit reiterated that district courts have more flexibility in considering the mandatory minimums required by § 924(c)(1) in order to depart from the Guidelines for the underlying predicate convictions.  Michael Henry, who had obtained a reversal of his convictions for three counts of bank robbery and three counts of violating 18 U.S.C. § 924(c)(1), was again convicted by a jury on all six counts.   His first § 924(c) conviction came with a mandatory minimum sentence of 60 months, while his second and third convictions carried mandatory minimum sentences of 300 months each.  The Guidelines also recommended a sentencing range of 70 to 87 months for his three predicate bank robbery charges.  The District Court subsequently sentenced him to a whopping 738 months in prison.

On appeal, Mr. Henry challenged the sufficiency of the evidence supporting his convictions and argued that the definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(A) was void for vagueness under Johnson.  Additionally, he appealed his sentence in light of the United States Supreme Court’s 2017 decision in Dean v. United States, which held that sentencing courts are not prohibited from considering the mandatory minimum imposed by § 924(c) when calculating the appropriate sentence for the predicate offense.

Although the Court quickly rejected Mr. Henry’s arguments challenging his conviction, it remanded his case for resentencing in light of Dean.  Thanks to Dean, Mr. Henry will have another chance to address his sentence in light of the § 924(c)(1) mandatory minimums.

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.'"