Tuesday, July 18, 2017

A Possible Different Twist on Padilla

After the United States Supreme Court's decision in Padilla v. United States, attorneys and courts are now well-versed about the necessity of informing defendants about the possible effects a guilty plea may have on their immigration status.  A recent published decision by the Court in United States v. Ataya, discusses a related issue that many of us may have not considered and is worth a brief discussion.

In this case, Mr. Ataya entered into a guilty plea to conspiring to commit health care fraud and wire fraud.  Although his plea agreement waived his right to appeal his conviction and sentence, Mr. Ataya filed a notice of appeal from the judgment.  The United States subsequently moved to the dismiss the appeal based on the waiver language.

In a published decision, the Court noted several issues with the district court's plea colloquy.  In particular, it found that the district court did not inform Mr. Ataya that the plea agreement required him to pay restitution and a special assessment.  Most importantly, however, the Court noted that the neither the plea agreement nor the district court told Mr. Ataya -- a foreign national who subsequently became a naturalized U.S. citizen -- that he could face "denaturalization" due to his conviction.  Although the Court held Mr. Ataya knowingly and voluntarily waived his appellate rights, the Court hinted that the failure to explain the denaturalization risk might invalidate the plea agreement as a whole and referred the motion to its Merits Panel to examine the issue.

While the Court may ultimately dismiss Mr. Ataya's appeal, this case serves as a reminder that counsel should take care in advising immigrant clients who enter into plea agreements -- even where such clients have become naturalized United States citizens.  While attorneys might overlook this issue where their client has taken the steps to become a naturalized citizen, this case emphasizes that one cannot be too careful in such cases.

Wednesday, July 05, 2017

Minor victim’s testimony sufficient to sustain sexual-assault conviction

Today, in a short published opinion, United States v. J.A.S., the Sixth Circuit rejected a 17-year-old defendant’s challenge to his conviction for sexually assaulting an 8 year old through vaginal penetration.

There was no medical evidence to show an assault, so the government’s case rested on the testimony of the victim.

The defendant made two arguments: (1) that the court shouldn't have admitted video of a forensic interview of the victim, and (2) that the victim's testimony was insufficient to convict him.

The court quickly dispatched the evidentiary argument. The video, the court concluded, fell under Rule 801(d)(1)(B)(ii), which allows for admission of prior consistent statements if offered to rehabilitate a witness after cross-examine.

The court also upheld the sufficiency of the evidence, distinguishing decisions from four other circuits that rejected convictions based solely on victim testimony. The court explained that in each of these cases the victims’ testimonies were vague about whether actual penetration occurred. In contrast, the victim in the case at hand testified at a bench trial that the defendant “put his pee in [her] pee,” that she “felt it” in her, and that it hurt.

Because he was charged for an act of juvenile delinquency under 18 U.S.C. § 5032, the defendant faced a maximum of 5 years’ imprisonment, and he received a 3-year sentence.

Thursday, June 29, 2017

Tennessee aggravated burglary - NOT a violent felony

As teased in the previous post (thanks Laura!), the Court on Monday issued an en banc opinion holding that, in our post-Johnson and Mathis word, Tennessee's aggravated burglary statute (Tenn. Code Ann. § 39-14-403) is not a violent felony under the ACCA.

In United States v. Stitt,  9 judges of the en banc court joined together in finding that "[b]y including 'mobile homes, trailers, and tents,' as well as any 'self-propelled vehicle,' Tennessee’s aggravated-burglary statute includes exactly the kinds of vehicles and movable enclosures that the Court excludes from generic burglary"  The Court found unpersuasive the argument that, because Tennessee law required such structures to be “designed or adapted for the overnight accommodation of persons”, that the statute met the generic definition of burglary.  Rather, it is nature of the place itself, rather than its intended use, that controls whether a location meets the generic burglary standard.

Congrats to AFPD Timothy Ivey!!!

Tuesday, June 27, 2017

Stitt!!!!!!!!!!!!!!!!!

Tennessee aggravated burglary is NOT a crime of violence. Details to be posted by whichever colleague whose thunder I just stole. I'm just really excited.

Opinion here

Friday, June 16, 2017

Sixth Circuit Recognizes Child Abuse Exception to Marital Communications Privilege

The marital communications privilege allows a defendant-spouse to preclude testimony by his or her spouse regarding confidential marital communications. The privilege has exceptions, of course, as do all privileges, and the Sixth Circuit recognized a child abuse exception in United States v. Underwood.

Underwood was charged with sex crimes perpetrated against his step-granddaughter, who was between eleven and twelve years old at the time. On appeal he challenged admission of testimony over his assertion of the marital communications privilege from his wife (1) that she became concerned about defendant’s favoritism toward their step-granddaughter; (2) about an incident when she found that defendant had changed the bed linens while he and the child had been at home alone; and, (3) regarding text messages and voicemails she received from defendant where he did not deny sexually assaulting the child and “apologized for not being a perfect man.”  

The Court principally relied on decisions from the First and Tenth Circuits, United States v. Breton, 740 F.3d 1 (1st Cir. 2014), and United States v. Bahe, 128 F.3d 1440 (10th Cir. 1997), to recognize and apply a child-abuse exception to the marital communications privilege. The child-abuse exception rests on four considerations: (1) a crime against a spouse or a spouse’s child profanes the trust and bond of marital partners and disrupts family harmony; (2) parental testimony is particularly necessary in child-abuse cases, because child abuse occurs most often in the home at the hands of a parent or parent-substitute; (3) the marital privilege, like all privileges, must be interpreted narrowly; and, (4) overwhelming state legislative and judicial authority that the marital communications privilege does not apply where the crime is against a spouse’s child.

Applying these considerations in a “fact-intensive inquiry” the Court explained as follows: (1) defendant’s sexual abuse of his wife’s granddaughter profaned the marital relationship and disrupted family harmony; (2) defendant sexually abused his spouse’s granddaughter while serving as a parental-substitute; (3) that the child was a granddaughter as opposed to a daughter made no significant policy difference; and, (4) that the crime occurred in defendant’s “sleeper truck,” as opposed to their home made no difference since the truck was the functional equivalent.

The Court also upheld admission of testimony from defendant’s daughter concerning his sexual assault on her more than 20 years prior to the trial pursuant to FRE 414.


Robert L.Abell
Zach Turpin 

Tuesday, June 06, 2017

Certiorari granted in Sixth Circuit case involving seizure of cell phone location records.


As noted in a previous post, the Sixth Circuit recently held in United States v. Riley that tracking a fugitive’s real-time GPS location through his cell phone was not a Fourth Amendment search. The Supreme Court has now taken up a case that involves the government’s seizure of cell phone location records. On the same day that the Riley opinion was issued, the Supreme Court granted certiorari in Carpenter v. United States, No. 16-402, which presents the question “whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.”

 In Carpenter, the defendants were charged with multiple robberies in violation of the Hobbs Act (18 U.S.C. § 1951). They sought to suppress evidence that included “business records from [their] wireless carriers showing that each man used his cellphone within a half-mile to two miles of several robberies during the times the robberies occurred.” United States v. Carpenter, 819 F.3d 880, 884 (6th Cir. 2016). The defendants argued that the government’s acquisition of those records constituted a warrantless search in violation of the Fourth Amendment. The Sixth Circuit upheld the denial of the suppression motion.  

 The Sixth Circuit recognized a distinction between “a communication’s content and the information necessary to send it.” In the court’s view, cell-site data is information that facilitates personal communications, “rather than part of the content of those communications themselves.” Carpenter, 819 F.3d at 887. The bottom line was that the government’s acquisition of records containing cell-site data was not a search under the Fourth Amendment and the defendants did not have a reasonable expectation of privacy in those records.
 
The Supreme Court may rule on the issue by the end of the year.

 

Government’s tracking of real-time GPS coordinates from fugitive’s cell phone is not a Fourth Amendment search.


In United States v. Skinner, 690 F.3d  772, 774, 776-77 (6th Cir. 2012), the court held that the government’s use of real-time cell phone GPS data to track a suspected drug trafficker as he traveled for several days in a motorhome driven on public roads was not a search. An important factor in Skinner’s Fourth Amendment analysis was that the defendant’s movements could have been observed by members of the public. Id. at 779. Relying on Skinner, the Sixth Circuit held in United States v. Riley, that tracking the real-time GPS location data from a fugitive’s cell phone for about seven hours preceding his arrest did not constitute a Fourth Amendment search.
          A state court issued an arrest warrant for Mr. Riley. He bought a cell phone and gave the number to his girlfriend who gave it to law enforcement officers. The officers obtained a court order for call metadata which included real-time tracking of the cell phone. Following the issuance of the court order, officers received real-time GPS data which showed that Mr. Riley’s cell phone was located at a motel in Memphis. The officers went to the motel and learned Mr. Riley’s room number from an employee. Mr. Riley was arrested and subsequently filed a motion to suppress a gun that was found in his room. Mr. Riley contended that the gun was the fruit of an unconstitutional search because the government’s method of tracking him violated his reasonable expectation of privacy and therefore required a search warrant. The Sixth Circuit upheld the denial of the suppression motion.
          The court recognized that a warrantless search inside a home (or a hotel room) is presumptively unreasonable. Mr. Riley, however, was not subject to a Fourth Amendment search because the use of GPS location data to determine the location of a person or a cell phone “does not cross the scared threshold of the home,” as long as the tracking “does not reveal movements within the home (or hotel room).” Riley, at p. 8 (court’s emphasis). The tracking here only showed that Mr. Riley “traveled to [the motel], “not which room (if any) the phone was in at the time of the tracking.” Id. (court’s emphasis). A significant factor in the court’s reasonable-expectation-of-privacy analysis was that the government learned no more about Mr. Riley’s whereabouts from the tracking than what “he exposed to public view by traveling to the motel lobby ‘along public thoroughfares.’” Riley, at p. 9 citing Skinner, 690 F.3d at 774 (court’s emphasis). The court emphasized that “one cannot expect privacy in one’s public movements.” Riley, at p. 9 (court’s emphasis).
          The per curiam opinion concludes with some good advice: if a person “truly wished to avoid detection, he could have chosen not to carry a cell phone at all, or to turn it off.” Riley at p. 9 (court’s emphasis).
          In a concurring opinion, Judge Boggs discussed several other factors that in his view supported the court’s holding. The most significant factor was Mr. Riley’s status as a fugitive as opposed to being a suspect. In Judge Boggs’ view, Payton v. New York, 445 U.S. 573 (1980), “as corroborated by significant historical evidence of the original meaning of the Fourth Amendment, provides strong support for the proposition” that fugitives who are on the run from arrest warrants have a diminished expectation of privacy. Riley, at p. 12 (concurring opinion). He would hold that Mr. Riley’s Fourth Amendment argument fails because “he was a fugitive subject to a valid arrest warrant,” and the officers had reasonable suspicion that he was in possession of the cell phone they were tracking. Riley, at p. 10 (concurring opinion).   

Wednesday, May 17, 2017

Dr. Evil needs some legal "advise" ... or is it "advice?"


When criminal-law cases imitate art,
they do not always choose its highest form.




The Secret Service pays close attention when nefarious packages arrive at accounting firms from “Dr. Evil” - especially if “Dr. Evil” threatens the release of undisclosed tax returns of a presidential candidate unless $1 million in bitcoins is exchanged.

In August 2012, the Franklin, TN office of PricewaterhouseCoopers received a padded envelope containing a flash drive and letter demanding $1 million in bitcoins to stop the release of Mitt Romney’s undisclosed tax returns. The letter provided that the flash drive had these encrypted tax files and upon receipt of the bitcoins, an encryption key would be provided. The Williamson County Republican and Democratic party offices also received letters a few day later. After that, posts were placed on Pastebin.com that described the stolen documents and referenced the mailed letters. Several of these posts were signed by “Dr. Evil” and had the movie character’s image superimposed on the lobby of PricewaterhouseCoopers’ Franklin TN office. “Dr. Evil” was also wearing a Secret Service badge.

No matter how careful a technologically savvy extortionist may be – there are always digital crumbs left behind - even when the extortionist portrays himself as “Dr. Evil” from Austin Powers: International Man of Mystery.

In Michael Mancil Brown’s case - some of those crumbs included photographs on the flash drives of Tripper and Valentine - two cats that lived next door to him. It is unfortunate that neither were called “Mr. Bigglesworth.” Other clues that assisted the Secret Service with pinpointing his identity included text strings left behind on the flash drives that provided his wife’s name and a user name frequently used by Brown; and his consistent inability to properly use ‘advice’ and ‘advise.’

The Secret Service obtained a trap-and-trace order to watch Brown’s online activity and subsequently obtained a search warrant for his home. More inculpatory evidence was obtained against Brown leading to his indictment. He was later convicted on six counts of wire fraud and six counts of extortion. He received a 48-month sentence and was ordered to pay restitution to PricewaterhouseCoopers in the amount $201,836 for the cost of its investigation. He appealed his convictions arguing that the Secret Service’s search warrant lacked probable cause and that he was prejudiced by the lower court’s decision to allow questions from the jury. 

The Sixth Circuit affirmed the convictions but vacated his sentence due to an improper obstruction of justice enhancement. Brown had given a list of names of people having access to his computer. This information was used at sentencing by the government to apply the obstruction of justice enhancement. The Court concluded that the statement actually helped the government, undermined Brown’s credibility, and bolstered the government’s case. Thus, the information provided by Brown did not significantly obstruct or impede the government’s investigation and did not justify the obstruction of justice enhancement pursuant to U.S.S.G. § 3C1.1. 

This Sixth Circuit opinion is truly an informative and groovy read, especially if you are a fan of the Austin Powers movies, or if you truly need a detailed legal analysis concerning the issues raised by Brown.