Friday, June 30, 2006

REDUX: Tolling of Supervised Release During Deportation

Several months ago, this writer posted about the Sixth Circuit's position that the district court has authority to order that a term of supervised release may be tolled while a defendant is out of the United States after being deported. See US v. Isong, 111 F.3d 428 (6th Cir. 1997). Today, in US v. Ossa-Gallegos, No. 05-5824 (6/30/06) (appeal by attorneys Jennifer Coffin and Ron Small of M.D. Tenn), the Court reviewed this issue in detail. The Court noted the strength of Judge Moore's dissent in Isong and "the weight of authority" from the 2nd, 8th, and 11th Circuits, which all found that such tolling is unauthorized. The Court nonetheless found that it was bound by the holding in Isong, but noted that Mr. Ossa might want to seek en banc review.

At sentencing in cases where the client is to be deported, practitioners should continue to object to a special condition tolling supervised release while deported, raise it on appeal and then in an en banc petition and/or cert. petition to the Supreme Court.

Thursday, June 29, 2006


An issue that has been up in the air in the Sixth Circuit is to what extent the written contents of an affidavit filed in support of a search warrant application can be supplemented at a later suppression hearing by claimed oral statements to the issuing magistrate. While the issue was resolved earlier this year, the recent decision in United States v. Frazier, 423 F.3d 526 (6th Cir. 2005), has created the potential for confusion.

The issue was framed in United States v. Carpenter, 360 F.3d 591 (6th Cir. 2004) (en banc) as "whether the search could have been saved under the ‘good faith exception’ on the basis that the officers had other information that was not presented to the issuing magistrate, but that would have established probable cause." 360 F.3d at 597. The majority of the en banc court did not reach the issue, however, finding instead that the information that was presented to the magistrate was sufficient.

Although not directly addressing this issue, the court did discuss what information could be reviewed in order to decide whether or not to uphold a search warrant. In United States v. Jenkins, 396 F.3d 751 (6th Cir. 2005) (decided January 28, 2005), the Court of Appeals was addressing whether the independent source rule could save the search in question. The court noted, "once the tainted information ... is eliminated, the probable cause analysis focuses on the written affidavit. A court determining the sufficiency of an affidavit in support of a search warrant is concerned only with the statements contained within the affidavit itself." 396 F.3d at 760.

The issue left open in Carpenter was finally squarely addressed in United States v. Laughton, 409 F.3d 744 (6th Cir. 2005) (decided May 17, 2005), which also arose in the context of the application of the Leon good faith exception. After finding the affidavit insufficient, the court addressed whether the search could be saved by application of Leon. It noted that "[i]n reaching its decision, the district court explicitly considered not only what was in the affidavit, but also what other facts were known to the deputy, but not included in the affidavit." 409 F.3d at 751. The court noted that while it had postponed deciding this issue in the en banc decision in Carpenter, it could no longer do so. "We further conclude that a determination of good-faith reliance, like a determination of probable cause, must be bound by the four corners of the affidavit. Whether an objectively reasonable officer would have recognized that an affidavit was so lacking in indicia of probable cause as to preclude good faith reliance on the warrant’s issuance can be measured only by what is in that affidavit." 409 F.3d 751-52. The court noted that this ruling was consistent with the Supreme Court’s dictate in Leon "‘that the relevant question is whether the officer reasonably believed that the warrant was properly issued, not whether probable cause existed in fact.’" 409 F.3d at 752 (quoting Carpenter, 360 F.3d at 598 (Gilman, J., concurring)).

This clarity of authority lasted not quite 4 months. In Frazier, a separate panel of the Sixth Circuit addressed a drug case in which the case agent sought six different search warrants, one of which was for the defendant’s home. The magistrate instructed the officer to include in the affidavits information that two of the buys by the confidential informant had been recorded. For reasons not explained, the agent made changes to five of the warrant applications, but not to the one for defendant’s home. In reviewing the affidavit as submitted, the court finds that it is insufficient to establish probable cause. The panel goes on to find that the search is saved by Leon. While noting that Laughton held that "the good faith exception to the exclusionary rule does not permit consideration of information known to a police officer, but not included in the affidavit, in determining whether an objectively reasonable officer would have relied on the warrant", the panel decides that "we interpret Laughton’s holding as limited to answering the question that this court, sitting en banc, explicitly left open in Carpenter." 423 F.3d at 534-35. In other words, because this case did not involve information that wasn’t presented to the magistrate, the rule doesn’t apply. The reason for the exception is the panel’s perception that the agent’s failure here didn’t amount to anything more than "a scrivener’s error". (Id.)
In justifying its decision, the panel notes "[W]e are unable to envision any scenario in which a rule excluding from the Leon analysis information known to the officer and revealed to the magistrate would deter police misconduct. ... Because a judge’s initial probable cause determination is limited to the four corners of the affidavit [cite], an officer has no incentive to exclude from the affidavit information that supports a finding of probable cause only to reveal this information to the magistrate by parole." (Id.) (Emphasis in original)

This explanation betrays a naivete about the realities of the search warrant process and challenges thereto. The concern is not so much about whether the officer will supplement the facts with oral information at the time he applies for the warrant, but whether he will lie about what information he knew and/or conveyed to the magistrate when he is later challenged in a suppression hearing. This would be the reason that a written application is required in the first place – so that one would know later exactly what (and no more!) was presented to the magistrate. To allow parole evidence to supplement the written application throws the process open to widespread abuse. And, as the Laughton panel noted, to allow into evidence proof of what was in this officer’s mind, but not reduced to writing, is inconsistent with the Leon "reasonable officer" test, which is based on the four corners of the affidavit.

It is most likely that Frazier has little application outside of the unusual and unique factual circumstances on which it is based. The fact that it involved a "scrivener’s error" and that the information was included in the other five warrants will, one hopes, rarely, if ever, be repeated. This ruling should not be taken as an open invitation to supplement search warrant applications with oral evidence that bolsters an otherwise weak affidavit, especially where that information was not even told to the issuing magistrate at the time of the application for the warrant. This would seem to be confirmed by the Court’s recent decision in United States v. Hython, 443 F.3d 480 (6th Cir. 2006). In that case the district court found the search warrant deficient as being stale, but further found that the Leon good faith exception applied and denied the motion to suppress. The Court of Appeals held that despite the occurrence of a single controlled buy at the residence, the lack of recent information to measure whether or not the residence was a fixed drug distribution point rendered the warrant insufficient. It went on to hold that in determining good-faith reliance by the officer, a court can only consider the information in the four corners of the document. The limited exception in Frazier did not apply here to the inference that a recent controlled buy indicates that more drugs will be found in the location as there was no proof in the record that the magistrate knew or was told when the controlled buy took place.

Thursday, June 22, 2006

Sentencing Disparity in Meth Cases Involving § 2D1.1(b)(5)(C) Increase to Offense Level 30 for Creating a Substantial Risk of Harm to Life of a Minor

In the post-Booker world in which we live where most sentences are being upheld on appeal as being reasonable, it is even more important to be creative at the district court level in showing that a sentence within the advisory guideline range is not reasonable, especially in light of the Sixth Circuit’s Williams/Foreman decisions extending a presumption of reasonableness to sentences falling within the advisory guideline range. Below is an example of creative lawyering by my colleague, Assistant Federal Defender Rita LaLumia, in a methamphetamine case to combat the unfairness that results when the offense level is increased to Offense Level 30 pursuant to U.S.S.G. § 2D1.1(b)(5)(C) for having created a substantial risk of harm to the life of a minor. The reasoning applies equally to any mandatory guideline enhancement to a certain offense level where a less culpable offender is treated more harshly than a more culpable offender by the mandatory offense level increase. Because the Sentencing Guidelines are now merely advisory, the district court’s are no longer required to sentence within the guideline range and the below reasoning gives a good argument pursuant to 18 U.S.S.G. § 3553(a)(6) ("the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct) to impose a more reasonable sentence falling far below the advisory guideline range.

Pursuant to U.S.S.G. § 2D1.1(b)(5)(C), a 6-level increase in offense level is applied if the offense (1) involved the manufacture of methamphetamine, and (2) created a substantial risk of harm to the life of a minor. If the resulting offense level is less than 30, the offense level mandatorily is increased to 30, regardless of the drug quantity involved in the offense of conviction Given this provision and the district court’s determination that the enhancement applied, the offense level in this case rose to Offense Level 30 from Offense Level 14 (based upon the drug offense involving 7 grams of methamphetamine). With only a 6-level increase, the resulting guideline range would have been 30 to 37 months based on a total offense level of 19 and a criminal history category of I. Without any enhancement for risk of harm, the defendant faced an offense level of 16 based on the drug quantity alone, providing a guideline range of 12 to 18 months. Thus, the 6-level increase alone essentially more than doubled his guideline range. With the full 14-level increase to Offense Level 30, he faced a guideline range of 70 to 97 months or almost six times the sentence he would receive at his base offense level.

The automatic increase to offense level 30 creates a sentencing disparity among defendants with similar records who have been found guilty of similar conduct, something that should be avoided under 18 U.S.C. § 3553(a)(6). Any defendant who has a base offense level of 24 or higher receives only a 6-level increase for creating a substantial risk of harm to a minor or incompetent. Any defendant who has a base offense level of 23 or lower receives a higher increase for the same criminal conduct, with that increase growing as the base offense level goes down. This example shows that while the Sentencing Commission may be in the best position to issue blanket policies regarding offenders as a group, the district courts and appellate courts are in the best position to fine tune a reasonable sentence to a particular defendant as required by Booker.