Thursday, April 20, 2017

The en banc reviews keep coming!

Yesterday, the Sixth Circuit granted en banc review in United States v. Gibson, 15-6122. This case involves whether a co-conspirator who only directly handled a very small amount of drugs should be held accountable for the total amount of drugs involved in the entire conspiracy.

Though he only made three small sales of meth, Mr. Gibson pled guilty to conspiracy to distribute meth that involved fifty grams or more of methamphetamine. This triggered the ten-year mandatory minimum. Mr. Gibson made Alleyne arguments as well as Guideline arguments, both of which were rejected by the Sixth based on existing precedent. Judges Daughtrey, Rogers, and Cook were not entirely happy with the result. Judge Rogers wrote:

"The result in this case may appear unjust. Mandatory minimums for limited-amount co-conspirators do not serve the drug statute's underlying purpose of more severely punishing larger-amount drug dealers. Nonetheless, absent a change in our law from the en banc court, the Supreme Court, or Congress, we are bound by our precendents."

Judge Rogers also noted the Circuit split on the issue.

The Sixth has yet to schedule oral argument in Stitt, 14-6158, or Turner, 15-6060. Given all the summer vacation schedules in play, it is probably too much to hope for a triple-header sometime in July or August. Maybe after Labor Day? When it is still warm enough to grab an after-court ice cream or pastry at Graeter's before heading off to Arnold's for tasty adult beverages?

Saturday, April 15, 2017

Judges clash over venue for money laundering

Ronald Myers argued that he couldn’t be tried in the W.D. Mich. for money laundering because, although he stole motor homes in the W.D. Mich., he sold (and received laundered proceeds for) them solely in other districts.

In US v. Myers, issued yesterday, Judges Rogers and Merritt affirmed his convictions, over Judge Kethledge’s dissent.

The money-laundering statute allows prosecution in “any district where a prosecution for the underlying specific unlawful activity could be brought, if the defendant participated in the transfer of the proceeds of the specified unlawful activity from that district to the district where the financial or monetary transactions in conducted.” 18 U.S.C.§ 1956(i)(1)(B). 

As the majority saw it, the statute provided venue in W.D. Mich. because Myers’s motor-home thefts occurred there. Further, the majority decided that the statute doesn’t violate constitutional limits on venue because those limits “permit prosecution in a district where the crime was committed in part.” Although Myers's money-laundering “was completed elsewhere,” the majority reasoned, “it was begun and therefore committed in part in the Western District of Michigan.”

Judge Kethledge disagreed on the constitutional point. He explained that, in interpreting constitutional venue, the Supreme Court has looked “to the place of the ‘conduct elements’ rather than to the place of any ‘circumstance element[s]’ of the offense.” And, he argued, the only “conduct element” to a money-laundering offense is the financial transaction itself. Because the financial transactions at issue took place outside the W.D. Mich., Judge Kethledge would have reversed Myers’s money-laundering convictions.

In his conclusion, Judge Kethledge warned that "the Constitution requires us to determine venue crime-by-crime, rather than in gross." Which raises the question: What other statutes could be subject to venue challenge?

Thursday, April 13, 2017

Exciting development in Turner right-to-counsel case

Last February, Judges Merritt, Batchelder, and Rogers announced in Turner v. United States, 15-6060 that they did not like Sixth Circuit precedent holding that the right to counsel (and thus the right to effective assistance of counsel) did not start until after a defendant is charged, but were bound to follow the precedent. We discussed the case here.

Apparently Judges Merritt, Batchelder, and Rogers are not the only judges on the court who have concerns. Today, the Sixth Circuit unanimously ruled to rehear the case en banc. This is a very exciting development. Anyone who has been involved with a defendant charged in state court and facing the possibility of federal charges knows just how important it is to have effective representation during the gestation period, so to speak, of a potential federal action. The NACDL filed an amicus brief in support of en banc rehearing.

No schedule has yet been set. Perhaps we could have a double header one day this summer, with Stitt in the morning and Turner in the afternoon?

Wednesday, April 05, 2017

Sixth Circuit addresses crimes of violence under U.S.S.G § 2K2.1(a)(2)

In United States v. Harris, the Sixth Circuit addressed the issue of whether the Michigan offense of Felonious Assault is a “crime of violence” under U.S.S.G § 2K2.1(a)(2).

          Oscar Harris was convicted of being a felon in possession of a firearm. The Guidelines provide that the base offense level for a firearm offense is increased if that offense is preceded by two felony convictions for a “crime of violence” which is defined in U.S.S.G § 4B1.2(a) and Application Note 1 thereto. See U.S.S.G § 2K2.1(a)(2) and § 2K2.1 cmt. n.1. The district court determined that Mr. Harris’s two prior convictions for felonious assault were crimes of violence under the Guidelines.

          On appeal, Mr. Harris contended that felonious assault was not a “crime of violence” because it could be committed by an offensive touching which would not amount to “violent force” under Johnson v. United States, 559 U.S. 133, 140 (2010). Thus, a felonious assault did not fit within the “elements clause” of § 4B1.2(a)(1) because it did not categorically involve the “use, attempted use, or threatened use of physical force against the person of another.”

          In response to Mr. Harris’s argument, the Sixth Circuit examined Michigan law and found that the felonious assault statute required a finding of “at least attempted or threatened offensive touching and use of a dangerous weapon.” The court determined that a battery is “a forceful or violent touching” and when coupled with the use of a dangerous weapon those two elements involve “the use, attempted use, or threatened use of physical force” under § 4B1.2(a)(1). Taken together, the two elements amounted to violent force and thus constituted a crime of violence under § 2K2.1(a)(2).  

Prior Convictions can count as crimes of violence under the Guidelines and as violent felonies under the Armed Career Criminal Act (ACCA)

United States v. Patterson involves the defendant’s direct appeal and the government’s cross-appeal of the district court’s sentencing decision.

          Mr. Patterson was convicted in Ohio state court of receiving stolen property and a traffic offense. The same incident also resulted in a federal prosecution and conviction for being a felon in possession of a firearm. The district court denied Mr. Patterson’s motion to dismiss the firearm charge on double jeopardy grounds. The district court, however, counted Mr. Patterson’s prior Ohio convictions for aggravated robbery as crimes of violence under the Guidelines but not as violent felonies under the Armed Career Criminal Act (ACCA). The Sixth Circuit affirmed the denial of the motion to dismiss but reversed the district court’s sentencing decision because the prior convictions met the requirements of the Guidelines and the ACCA.

          The Sixth Circuit first noted that dual prosecutions do not constitute double jeopardy because Ohio and the United States are separate sovereigns and may prosecute a person under their separate legal systems. Mr. Patterson, however, contended that the government acted in “bad faith” because it should have notified him of its intention to file federal charges when he was considering the State’s plea offer. The Sixth Circuit explained that the record did not show that there was any federal collaboration in the state prosecution. The federal government was not involved in the state plea negotiations and the State did not promise Mr. Patterson that he would not be subject to a federal prosecution. In the court’s view, there was no evidence of bad faith. The court, however, did not reject Mr. Patterson’s bad faith argument out of hand and the implication is that it could work in a different situation.

          The “heart” of the case, however, was whether Mr. Patterson’s prior aggravated robbery convictions were predicate offenses under the ACCA. The Sixth Circuit’s analysis focused on the ACCA’s “elements clause” which describes a “violent felony” as an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” See 18 U.S.C. § 924(e)(2)(B)(i). Using the categorical approach to determine whether the “elements clause” encompassed aggravated robbery, the Sixth Circuit looked at the statutory definition of the offense rather than the underlying facts. In response to one of Mr. Patterson’s arguments, the court said it did not matter that the Ohio statute did not include an element that matched the ACCA’s elements clause word for word as long as the offense at issue required the State to prove everything included in the elements clause.

          Mr. Patterson also argued that Ohio statute did not expressly require the use of force or that the use of a deadly weapon must be against another’s person. The Sixth Circuit, however, determined that the Ohio Supreme Court construed the statute as containing those elements. As to Mr. Patterson’s argument that the statute would permit a conviction of someone who robs a store while just happening to be carrying a weapon openly (as Ohio law allows), the court said that as long as there was no reason to think that the statute could be applied to someone who used “minimal actual force” or did not threaten serious physical force against others, then “there is every reason to treat it as a crime of violence.”

          The Sixth Circuit concluded from the language of the Ohio statute and state court decisions interpreting it that aggravated robbery fell within the scope of the elements clause and was therefore a violent felony. Thus, Mr. Patterson should have been sentenced as an armed career criminal.

          Mr. Patterson raised another issue regarding his sentence. He contended that the district court committed error by treating his conviction for aggravated robbery with a deadly weapon as a crime of violence when it calculated the base offense level under the Guidelines. The Sixth Circuit noted that it used authority interpreting the ACCA’s elements clause to interpret “the same phrase in the Guidelines.” That led the court to conclude that the offense qualified as a crime of violence under the Guidelines. The court also cited Beckles v. United States, 137 S.Ct. 886 (2017) as a separate reason to reject Mr. Patterson’s argument because aggravated robbery with a deadly weapon “would have qualified as a crime of violence under the residual clause, which was still part of the Guidelines” when he was sentenced.   




Sunday, April 02, 2017

Out of Luck

Child pornography cases are hard.  The people charged with such offenses often suffer serious mental health conditions or survived traumatic events.  Penalties for child pornography offenses are severe.  And the images of abuse are terrible—so terrible, in fact, that few defense attorneys would ever want to try a child pornography case to a jury.  The theory goes that, once the jurors see the awful images, their desire for recrimination will make consideration of nuanced defenses about the defendant’s intent nearly impossible.  United States v. Luck illustrates just how few arrows are in defense counsel’s quiver when defending child pornography cases.

Lindell Luck was charged with possession and distribution of child pornography.  Both charges require proof that the images possessed and distributed depict child pornography.  In an effort to focus on other elements (and perhaps to minimize jurors’ retributive impulses), Luck offered to stipulate that the images on his computers depicted child pornography.  But the government would not agree to this stipulation and insisted that jurors must view the images.  When the district court refused to force a stipulation, Luck turned to Old Chief v.United States, 519 U.S. 172 (1997), which held that district courts abuse their discretion under FRE 403 when a defendant charged with being a felon in possession of a firearm offers to stipulate to the prior felony conviction. 

Relying on one of Old Chief’s footnotes, which said the holding was limited to proof of a defendant’s felon status, the Sixth Circuit and the district court rejected Luck’s request.  Felon status, the court reasoned, is a unique element of 18 U.S.C. § 922(g) because the fact of conviction is all that matters, not the nature and circumstances leading to the conviction.  The prior conviction is essentially a side show that pre-dates the defendant’s new criminal conduct.  In contrast to a defendant’s felon status, the nature of the images is critical to the story of the offense.  The Sixth Circuit believed jurors might be confused if a court simply told them the files on Luck’s computer include images of child pornography.  The court further believed the jury could consider the content of the images to evaluate whether Luck knew the images he distributed were child-pornographic.  Worse yet, the court explained, a stipulation may unmoor the jury’s task “to sit in judgment” and understand the “human significance” of the defendant’s judgment.  The court did not mention the fact that, unlike a capital case, the jury plays no role in sentencing.  Apparently, the jury must be convinced that people, in fact, download and distribute child pornography.  And so, there is little defense counsel can do to ensure jurors can set aside their emotions after viewing these terrible images.

Luck includes other important discussions about whether a person is “in custody” when FBI agents come knocking at the door.  In short, the Sixth Circuit endorses the view that, unless officers are yelling or brandishing weapons, if a person is in his own home and officers say that the interrogee is free to leave, then no reasonable person could believe he is under arrest.  In reaching this conclusion, the court sanctioned the exclusion of testimony by the other people present during the questioning who would say that the FBI agents’ demeanor, tone, and general affect gave the distinct impression nobody was free to leave.  Also irrelevant to the in-custody inquiry was the fact that Luck was under the influence of various medications that cause him to feel like a character on The Walking Dead for a few hours after waking because nothing in the record suggested that the officers were aware Luck was under the influence.

The Sixth Circuit also approved of the exclusion of any testimony about why exactly Luck took those medications.  Luck was diagnosed with leukemia when he was eight years old.  He survived three years of chemotherapy and at least one botched chemotherapeutic session.  Since that time, he has struggled with joint pain, memory retention, and basic skills like reading and writing.  The jury was not permitted to hear any of that back story because the district court feared it would distract the jury from the task at hand:  deciding whether to believe Luck’s confession was true and freely given.  The Sixth Circuit agreed.

Finally, in an attempt to plant some reasonable doubt, defense counsel tried to call Luck’s father to the stand.  The plan was to ask dad a few introductory questions, but when the direct examination ventured into topics like who downloaded and distributed the child pornography, he would invoke his Fifth Amendment privilege against self-incrimination. This, the Sixth Circuit said, defense counsel cannot do when the witness and defendant have a familial relationship.  The fear is that the father may try to take the fall for his son.

In sum, Luck’s convictions and 78-month sentence were affirmed.  And defendants tried with child pornography offenses are likely out of luck if they want a jury trial.

Friday, March 31, 2017

Sheparding district courts

United States v. King brings us a fresh take on an old question:  How should courts determine whether someone is an armed career criminal?  Everyone is familiar with the beloved modified categorical approach, which requires sentencing courts to look at the elements of the statute of conviction and then compare them to the elements of the “generic” version of that crime.  When courts can’t figure out the elements the prosecution necessarily proved or the defendant admitted, then they may peek at the Shepard documents to learn the elements. 

But the Armed Career Criminal Act also requires that the government show that the defendant was convicted of violent felonies on different occasions.  How are courts to find out whether the prior offenses were committed on different occasions?

Errol King committed three kidnappings—all of which occurred “on or about February 18, 2002” in Cleveland, Ohio.  The indictment identified the victims, but did not list the place and times of the kidnappings.  This left the court guessing about whether the three robberies occurred on the same occasion.  To resolve this question, the district court used bills of particulars in which prosecutors claimed King had kidnapped and robbed seven victims at three different times and three different locations.  The Sixth Circuit had to decide:  (1) Are courts limited to looking at only Shepard document when trying to discern whether a defendant was convicted of three violent felonies on three separate locations?; and (2) Is a bill of particulars a Shepard document?

To answer the first question, the court reexamined the reasons underlying the Supreme Court’s decision to create the modified categorical approach in the first place.  To start, the statute’s text and legislative history do not provide any reason to believe Congress intended district courts to engage in extensive factfinding to understand the nature of the defendant’s prior conviction. Put simply, Congress never contemplated or desired re-litigation of the underlying convictions.  In addition, the statute itself discusses “previous convictions,” which indicated the focus was on the conviction itself, not the conduct leading to it.  Finally, the Sixth Amendment’s guarantee that juries, not judges, find facts beyond a reasonable doubt that increase the minimum penalty compels sentencing judges to limit their function as factfinders. 

There was one major difference between the two questions district courts must ask to apply the ACCA:  the statute provides that the convictions for violent felonies be “committed on occasions different from one another.”  18 U.S.C. § 924(e)(1).  This wording potentially suggests Congress was more concerned about the factual details underlying the conviction than the fact of conviction. But the Sixth-Amendment concerns were still present.  Judges would still have to scour the record to learn when and where the defendant committed the crimes.  For that reason, the Sixth Circuit held that district courts may consider only those sources sanctioned by Taylor and Shepard to determine whether the offenses were “committed on separate occasions different from one another.”  And so, the Sixth Circuit joined the Second, Fifth, Seventh, Tenth, Eleventh, and D.C. Circuits in holding that sentencing courts may not engage in a searching review of all records to determine whether a person must be sentenced to at least fifteen years in prison.  The Eighth Circuit alone holds the opposite view.

Having settled that score, the court turned to the next question:  Is a bill of particulars a Shepard document?  The Supreme Court did not list bills of particulars when it first identified the types of documents courts may consult, so the Sixth Circuit had to reason by analogy.  Ultimately, it concluded that juries need not find and defendants need not admit all facts listed in bills of particulars to be convicted of an offense.  For that reason, district courts may not consult bills of particulars to ascertain whether the defendant committed violent felonies on separate occasions.

The Sixth Circuit sent King’s case back to the district court for resentencing.  Before doing so, it clarified that the government could not rely on the fact that King pleaded guilty to kidnapping multiple victims.  Nothing in the indictments indicated that King did not kidnap all seven victims simultaneously.

King serves as an important reminder that district courts and prosecutors may not stray too far afield in the search of reasons to put a person in prison for fifteen years at minimum.

Made in .... ?

Courts and law professors are fond of reminding us that the power of the federal government is limited.  To those of us who practice criminal law in federal court, however, the limits of federal power can seem elusive.  Jurisdictional elements are often quite easy for the government to prove in the ordinary course of business because only a rare criminal is capable of avoiding travel, telephones, the internet, or products made abroad.  As such, many defense lawyers opt to focus on the other elements of the crime charged.

Riley Lively’s lawyer did not.  He mounted a defense to challenge to the interstate nexus element of 18 U.S.C. § 2251(a) and clarified what exactly the government must prove to secure a conviction in federal court.

18 U.S.C. § 2251(a) prohibits sexually exploiting a minor “for the purpose of producing any visual depiction of” that sexual exploitation (2) if “that visual depiction was produced or transmitted using materials that have” a nexus to interstate or foreign commerce.  Lively traveled from California to Michigan to meet up with a man he “met” in an online chatroom.  One of these chatroom friends cared for a nine-year-old boy.  Once in Michigan, Lively performed oral sex on the boy while his chatroom friend took four photos using a digital camera.  The camera had a memory card that stored these four photos.  At some point, these four images were copied from the camera’s memory card to a hard drive, which everyone agreed (by stipulation) was manufactured in Thailand.  To sum up, there were two sets of images depicting the abuse:  four on the camera’s memory card, and four that had been copied onto the Thai-made hard drive.

At the close of the government’s case, Lively argued he could not be convicted because there was no evidence to support the federal government’s exercise of jurisdiction.  The evidence showed only that Lively intended to produce the original images, but nothing suggested he intended to produce the copies.  And the government had proven only the origin of the hard drive used to create the copies, not the origin of the camera and memory card used to create the originals.  The government rested its case on the Thai-made hard drive, which everyone agreed was made outside the United States and Michigan.  In other words, the government and the district court believed Lively committed a federal crime if he intended to produce the original images, and someone, somewhere, sometime reproduced those images using materials with an interstate nexus.  Prosecutors did not mention or discuss the origin of the camera or memory card used to make the original images.  The district court adopted the government’s interpretation, and Lively was convicted.

The Sixth Circuit disagreed with the government’s broad interpretation of the statute.  But first, it clarified whether copying images from one drive to another constitutes “producing” child pornography for purposes of 18 U.S.C. § 2251(a).  Relying on the “broad and non-technical” meaning of “producing,” the Sixth joined other circuits and held that copying and/or digitally storing those images are manners of production.

Then the court got to the heart of the matter:  Could the government prevail if the Thai-made hard drive was the only material with an interstate nexus?  The answer was “no.”  Instead, the government must prove Lively sexually exploited the minor for the purpose of producing a visual depiction of the abuse, and “that same visual depiction” he intended to be created was “produced using materials that have an interstate commerce nexus.” In other words, the government had to prove the camera or its memory card had a connection to interstate commerce.

So, did Lively’s victory in this hard-fought battle result in an acquittal?  No, Lively lost the war.  The Sixth Circuit scoured the record (and even called the court clerk) to determine the origin of the camera’s memory card.  That memory card bore a trade inscription that doomed Lively’s appeal:  “Made in China.”  Because the jurors had seen and held the Chinese-made memory card, there was enough evidence in the record to uphold the conviction. 

Lively serves as a reminder that no element is a freebie.  If the materials used to produce images were made in the U.S.A. or of unknown origin, prosecutors must work a bit harder to prove the case belongs in federal court and defendants must be subject to harsh federal penalties.  

Thursday, March 16, 2017

Court overturns life sentence on murder conviction due to counsel's lack of advocacy

"Ladies and gentlemen given the dispatch with which you resolved all the holes in the government’s case that I spent two days pointing out, it’s apparent to me that I’m some how not communicated with you during the first part of the trial. So I don’t intend to take anymore of your time in this part."

That argument was apparently the sum of defense set forth in a death penalty penalty phase proceeding.  Defense counsel, in addition to making the above bare bones argument, refused to make an opening statement, did not present any evidence in mitigation, and did not object or make any suggested additions or changes to the jury instructions.  The jury suggested a sentence of life, which the court imposed.

The Sixth Circuit, reviewing the matter for habeas relief, found that counsel's conduct (or lack thereof) amounted to ineffective representation warranting habeas relief.  Phillips v. White, 15-5629   "[C]ourts are generally reluctant to accept something as stark as not investigating or presenting mitigating evidence at capital sentencing as a reasonable tactic. Failing to argue against the death penalty and advocate for a lesser sentence is even less reasonable. For these reasons, Charles’s sentencing performance was clearly deficient."  In fact, the Court found that counsel did so little in defense that prejudice would be presumed.

As a side note, the State had tried to argue that Phillips 2254 petition should be dismissed for failing to exhaust his state remedies.  But the Court noted that the state court had simply never ruled on Phillips claims, despite having them since 2008 (it didn't help that the state sentencing judge, while holding on to the claim, himself got indicted and convicted of a criminal charge.)  Under the circumstances, the "inordinate delay" allowed the claims to be adjudicated by the federal courts.