Friday, November 25, 2016

To In Propria Persona or not In Propria Persona? Sixth Circuit Affirms Appointment of Counsel for Unruly Defendant

Defense attorneys have their fair share of stories involving difficult clients, and many of us have served as "standby" counsel for defendants who wish to represent themselves (insert the old "fool for a client" adage here).  In United States v. Pryor, however, the Sixth Circuit addressed a less frequent situation: one in which the defendant is so disruptive to the court's proceedings that it not clear, what, if anything he intends to do.

Jermaine Pryor -- who would prefer we call him "Al Gomono Bey" -- (we will just call him Pryor) was indicted for conspiring to distribute heroin between 2012 and 2014.  The indictment stemmed from an investigation law enforcement that involved several intercepted phone calls between other individuals and Prior, who went by the code names "Daffy" and "Taz."

The procedural history of this case is...well...interesting.  Although he never identified himself as such, Pryor apparently adopted many of the tactics employed by the "sovereign citizen" movement, which is an ideology that rejects the United States' jurisdiction over its members.  Pryor repeatedly interrupted the magistrate judge during his initial appearance to object to the jurisdiction of the United States courts over him.  The magistrate judge subsequently appointed standby counsel for Pryor, to which he again objected, stating he was “not a part of your society. . . . I am a moor, and your laws d[o]n’t apply to me.”  When asked whether he was going to hire his own attorney, Pryor responded that he was not going to do so and explained he was "not a minor and no one . . . will be talking for me."  Pryor's actions in the courtroom ultimately prompted the magistrate judge to order the Bureau of Prisons to evaluate Pryor's competency to stand trial.

Unfortunately, Pryor's competency evaluation, and his subsequent competency hearing, did little to improve his relationship with the magistrate judge.  Pryor objected to being in court and indicated he was appearing in propria persona (a fancy term for pro se).  Despite Pryor's statement, the magistrate judge appointed Pryor's standby counsel to represent him, at least during the competency hearing.  After Pryor repeatedly failed to answer the magistrate judge's questions as to whether he wished to represent himself, the judge appointed Pryor's standby counsel to represent him during the duration of the proceedings.  This did not satisfy Pryor, who continued to interrupt the magistrate judge, to which the judge responded by having Pryor removed from the courtroom.  This did not slow down Pryor, however, who continued sending letters to the court objecting to its jurisdiction.  The court ultimately entered an order directing the clerk to automatically reject his letters.

Now before the district court judge, Pryor continued attacking the court's jurisdiction and its decision to appoint counsel to represent him.  Nevertheless, Pryor's case proceeded to trial, during which the jury convicted him of conspiracy to distribute 100 grams or more of heroin.  The district court subsequently sentenced him to 235 months imprisonment.

On appeal, the Sixth Circuit, after briefly addressing Pryor's numerous arguments regarding its jurisdiction, turned its attention to some of his more interesting arguments, including his assertion the district court erroneously denied him his constitutional right to represent himself.  After addressing this and other arguments Pryor raised, it affirmed his conviction.

In addressing Pryor's self-representation argument, the Court acknowledged the difficult balancing act in which courts must engage in determining whether defendants knowingly and voluntarily waive their right to counsel and intelligently assert their right to self-representation at every stage of the proceedings.  The Court concluded, however, that a defendant must give the court an opportunity to make its preliminary inquiry as to whether he or she is knowingly and voluntarily waiving his or her right to counsel.  The Court found that by constantly objecting to the district court's jurisdiction over him, Pryor did not give the magistrate judge an opportunity to engage in this inquiry.  In summary, the Court found that, considering Pryor's actions in the case, the district court did not err in appointing counsel for Pryor during the proceedings and that he was not entitled to a "mulligan."






Tuesday, November 22, 2016

MS Word Magicians Beware: Amendments to the FRAP are Effective on December 1st!




Microsoft wordsmiths beware! The United States Supreme Court recently adopted significant revisions to the Federal Rules of Appellate Procedure that will affect the format of every brief, motion and other document filed with the court.  Specifically, the new rules discard the page limits found in Rules 5, 21, 27, 35, and 40 in favor of word counts for petitions for permission to appeal and answers thereto, petitions for mandamus or other extraordinary writ and answers thereto, motions and responses and replies thereto, and rehearing and en banc filings.  Further, the new rules reduce the word limits for briefs based on the assumption that one page is equivalent to 260 words.  For example, the new rules reduce the word limit for appellate briefs (where no cross-appeal is involved) from 14,000 to 13,000 words.

The new rules also make significant changes to the rules outside of page and word limits.  For example, they eliminate the three day (mail) rule for documents served electronically.  Litigants thus can no longer add three days to their response deadlines for documents served electronically.  Additionally, the new rules add new provisions for filing amicus briefs in connection with requests for panel or en banc rehearings, clarify the rule regarding the timeliness of post-judgment motions, and they clarify inmate filing rules.

The proposed amendments become effective on December 1, 2016.  Every attorney with a federal appellate practice should review the proposed amendments before their effective date.  You can find them here: http://www.ca6.uscourts.gov/sites/ca6/files/documents/rules_procedures/2016%20FRAP%20Amendments%20Redline.pdf

Saturday, November 19, 2016

There Is A Crown Victoria Lurking In The Shadows


Police commonly lay in wait for suspects at their homes. Armed with a search warrant for the home, the police wait until the suspect enters the curtilage of the home before revealing themselves and initiating the search. This tactic permits the police to forego obtaining an arrest warrant while increasing the scope of the search warrant to include what the suspect has on his person. Rarely, however, do police permit a suspect to get a block away from the house before springing into action. But on a snowy night in Grand Rapids, this is what happened to Kevin Price.

In United States v. Price, police had staked out Mr. Price’s home in three vehicles (including a Crown Victoria). Price arrived at the home in a truck with a snowmobile trailer in tow. He exited the vehicle and briefly spoke to someone in a nearby idling car. Police interpreted Price’s actions in relation to the person in the idling car as consistent with a drug transaction (the police did not divine whether the transaction involved a felony amount). Price then went to the back of the home, paced for a few moments (not far from the Crown Victoria), then got into a truck parked behind the home and left.

The police sprang into action—arresting Price at gunpoint a block away. They brought Price back to the home and began their search. In the course of the search, the police discovered evidence of two units Price rented at a nearby storage area. Although Price initially refused consent to search the units, he broke down three hours after his arrest and consented to a search (which revealed controlled substances and firearms). An indictment followed.

Price moved to suppress the arrest and excluded the search of the storage units because they were searched based on consent resulting from the prolonged arrest. The Court rejected Price’s arguments because the police had probable cause to support the arrest. The Court relied upon: (1) the information in the search warrant; (2) the police interpretation of Price’s interaction with the idling driver as a drug transaction (coupled with Price’s criminal history), and (3) Price’s flight from the scene—because, although there was no direct evidence that Price knew the police (or the Crown Victoria) were present, Price could have seen the Crown Victoria and Crown Victorias are “easily associated with police even when unmarked.” Hence, his departure was evidence of flight from the scene. The Court of Appeals affirmed.

The decision marks a troubling expansion of the distance the police can go to arrest a suspect incident to the execution of a search warrant—particularly because of the reliance on the search warrant material to support the arrest. Perhaps the decision is best dealt with by limiting it to its facts, thereby holding it as an arrest case. And, maybe most importantly, if you think you may be suspected of wrongdoing and you see an unmarked Crown Victoria, don’t leave—doing so is evidence of flight.

Thursday, November 10, 2016

New guidance/rule on extensions of time to submit briefs

For many years, the rule of thumb on brief-filing extensions was that you were pretty much guaranteed a 30-day extension and a 14-day extension.

I recently was granted a 30-day extension, and noticed the grant was marked "FINAL EXTENSION." I called the case manager to see if there was some mistake.

Apparently about a year ago, the Sixth Circuit decided cases were moving too slowly through the appeal process and told case managers to tighten up on extensions. The first 30-day extension would have the same standard as always, but any extension after that would not be guaranteed and would depend very much on the reasons given for the needed extension.

Wednesday, November 02, 2016

Court rejects challenge to Ohio's lethal-injection secrecy law

Over a dissent from Judge Stranch, the Sixth Circuit today in Phillips v. DeWine, No. 15-3238, upheld the dismissal of a challenge to the constitutionality of Ohio’s new statutory scheme protecting the identities of individuals and entities participating in the State’s legal-injection process—what the dissent referred to as “state lethal injection secrecy laws.” The new law requires confidentiality of participants’ identities, prevents licensing authorities from disciplining them because of their participation, and allows participants to sue anyone who discloses their identity.

A group of current death row inmates challenged the law as violating their right to free speech and as instituting an illegal prior restraint on speech. They also argued that it violates their rights to equal protection, due process, access to the courts, and access to government proceedings.

The Sixth Circuit decided that the plaintiffs lacked standing to raise the free-speech and prior-restraint claims. The court explained that, although the broad purpose of the new statute may be to facilitate the plaintiffs’ deaths, they were not the “object” of the statute for purposes of standing, principally because, in the court’s view, the statute regulated the conduct of third parties, not the plaintiffs. The majority also concluded that the argument that the law would lead to deficient executions was speculative.

The court rejected the rest of the claims for failure to state a claim. The court concluded that recognizing a right of access to government proceedings in this circumstance would expand the right beyond what the Supreme Court has allowed. The court also dismissed the equal-protection, due-process, and access-to-courts claims on the basis that the plaintiffs had no constitutional right to discover evidence of ineffective execution procedures or to litigate such grievances effectively.

Judge Stranch issued a fervent dissent. She began with the “horrifying tale” of Ohio’s last execution, which the State botched. After inmate Dennis McGuire’s lethal injection, Judge Stranch explained, he stayed alive for 25 minutes while he spasmed, gasped, snorted, and choked. Judge Stranch stated plainly that there is “no doubt” that the new law “will obstruct scrutiny of Ohio’s execution protocol.” She then explained why, in her view, the plaintiffs had standing to challenge the civil-action provision. She also argued that the majority misapplied Supreme Court law on the First Amendment right of access, and that the district court prematurely dismissed the plaintiffs’ due process claim without examining the viability of a procedural due process theory. She ended on a call to permit these types of claims to be heard in order to “protect[] the functioning of our justice system.”

Wednesday, October 26, 2016

Michigan breaking and entering is not "burglary" under the ACCA



Great win for AFPD Paul Nelson out of the Western District of Michigan!!

United States v. Ritchey, 15-2460

The Court has held that Michigan's breaking and entering statute, Mich. Comp. Laws § 750.110, is broader than the generic definition of burglary.  Further, because it had a broader definition of "building", which included means of committing the offense, it could never qualify as an enumerated burglary offense.  Thus, Ritchey's 180 month sentence was unconstitutional.

Also important was the Court's ruling that Ritchey did not waive his claims.  The Government on appeal argued that because Ritchey agreed, at his plea hearing, that his priors qualified under the ACCA, he had waived the argument for appeal.  But the Court found "regardless of whether he
conceded this point, Ritchey could not have waived or intentionally relinquished an argument
based on Mathis because the case was decided after his sentencing."

Monday, October 03, 2016

Mitigating-role amendment is retroactive

Today's decision in United States v. Carter recognizes the perhaps obvious fact that Amendment 794 applies retroactively because it is a "clarifying" as opposed to "substantive" amendment. Amendment 794 amends the commentary to U.S.S.G. § 3B1.2, the guideline that allows judges to reduce a defendant's base offense level if the defendant had a lesser role in his or her offense. The amendment requires judges to consider certain new factors regarding the individual's role. Such "commentary-only" amendments are almost always interpreted as "clarifying" and thus retroactive, and so it was here. The defendant had been sentenced before the amendment went into effect. However, because the defendant's sentence was not yet final, and because the court had not considered the factors added by Amendment 794, the Sixth Circuit remanded for resentencing.

The unsurprising holding regarding retroactivity in Carter is most relevant for what it does not stand for. Prison gossip has led many to believe that Amendment 794 would provide an avenue for early release from prison along the lines of Amendment 782 or the various "crack amendments." In fact, the retroactivity of this amendment will likely affect only those individuals whose sentences are not yet final. 

In any event, a good result in this case and for other defendants who may benefit.