Friday, December 19, 2008

Void for Vagueness Doctrine

Today, in U.S. v. Davis, the Sixth Circuit overturned a Michigan Statute prohibiting dangling objects from a rearview mirror that "obstruct the vision of the driver of the vehicle." A panel, with Judge Martin writing the opinion and citing Kolendar v. Lawson, 461 US 352 (1983), found the language of this statute was void for vagueness because it allowed for the "standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections." Martin went on to observe that the void for vagueness doctrine is even more important now because:

the rule of law concerns underlying the vagueness doctrine are even stronger in
the Fourth Amendment context after the Supreme Court's decision in Whren v.
United States, 417 US 806 (1996), which did away with pretext analysis under the
Fourth Amendment. If courts cannot review the motives of law enforcement
officers after the fact, it is crucial that they review the breadth of discretionary
authority police receive from legislatures at the outset. The alternative is a broad
abdication of the judicial duty to enforce the Fourth Amendment's prohibition on
unreasonable searches and seizures at a time when this duty is more important
than ever.

Davis, at *7.

Unfortunately for Mr. Davis, the void for vagueness doctrine rarely helps those challenging the statute first. The Sixth went on to find that "the good faith exception to the Exclusionary Rule applies to searches conducted in good faith reliance on a presumptively valid statute." citing United States v. Krull, 480 US 340 (1987) and Michigan v. De Fillippo, 443 U.S. 31 (1979).

I admit that our office does not challenge statutes as void for vagueness as often as we should. Given Martin's opinion, this doctrine seems like rich ground to challenge stops premised upon, usually, overbroad city ordinances. It might not result in suppression against your client, but challenging statutes under this doctrine would force cities and states to start drawing their criminal laws more narrowly and restricting the police discretion on the street.

NOTE: On New Year's Eve, the Sixth Circuit issued a one sentence order withdrawing the opinion in Davis. From a review of the Sixth Circuit website it appears that the State of Michigan has filed a Motion to Intervene under 28 USC S 2403, and FRAP 44, asking the court for permission to argue for the constitutionality of the law in question. I personally will admit that I was not familiar with FRAP 44 that requires an attorney who is challenging the constitutionality of a statute on appeal to alert the court clerk in writing that he is challenging the law, in order to give the clerk opportunity to alert the State in question of the challenge.

Thursday, December 18, 2008

Boggs: Not ineffective to investigate childhood abuse because the jury would've hung 'em anyways

I do not claim to be an expert in habeas law (although Sumnter's presentation this fall in Nashville definitely taught me a lot more than I knew before), but the decision today in West v. Bell seems to fly in the face of logic. Because this is a 39 page opinion (in the Sixth's new, easier to read format) in a death penalty case, I'm just going to write a quick note and let you explore further if it interests you. The defendant was charged with murder. In the majority, Boggs and Norris found that it was not ineffective assistance of counsel for defense attorneys to fail to investigate allegations of early childhood abuse for presentation in the mitigation phase, even though a) the defendant's sister had informed them of the abuse, b) the defendant had been born in a mental institution, and c) the defendant asserted that he had no childhood memories before the age of 10.

In a well reasoned dissent (although she concurs in the majorities findings regarding conviction related evidence), Judge Moore disputes the legal analysis employed by the majority, stating that it failed to consider the ineffective assistance claim in light of Wiggins v. State, 539 U.S. 510 (2003) and Rompilla v. Beard, 545 U.S. 374 (2005). The essence of her dissent is that "West's counsel ignored these key pieces of evidence that would have led a reasonable attorney to investigate further. Thus I conclude that West's counsel was deficient."

Apparently under Boggs and Norris' view, while another attorney may have investigated further, without a showing that the defendant was prejudiced by this failure to investigate, the defendant is not eligible for relief. While the odds are against it, I wish that this opinion would join the growing list of other Bell cases before the Supremes.

Tuesday, December 16, 2008

The Right to Allocution

In United States v. Haygood, Case No. 07-1771, decided December 15, 2008, the Sixth Circuit affirmed a district court's denial of a defendant's Motion to Withdraw Guilty Plea, but found that the district court had violated the defendant's right to allocution at sentencing.

As to the Motion to Withdraw Plea, the defendant argued at district court that "the charges should not have been brought because there was a deficient original warrant that was the basis of the execution that gave rise to the evidence in this particular case." However, the Sixth Circuit found that the district court did not abuse its discretion in denying Mr. Haygood's Motion to Withdraw his plea because his plea did not come until the close of the prosecution's case-in-chief at trial. Because he failed to make any motion to suppress prior to trial, any objection to his arrest or search had been waived by the time he had entered his plea.

More interestingly, the Sixth Circuit did find that the district court violated Fed.R.Crim.P. 32(i)(4)(A)(ii), the defendant's right to allocution at sentencing. The district court judge in Mr. Haygood's case reminded the defendant that he was under oath and regarding his 5th Amendment right to remain silent prior to answering the judge's questions. The defendant elected t0 exercise his 5th Amendment right, and not answer any questions. The Sixth Circuit found that the court to satisfy Rule 32, requiring the court to "permit the defendant to speak or present any information to mitigate the sentence." The Sixth found that "we are unaware of any case that excuses the sentencing judge from providing an allocution opportunity because the judge instead advised the defendant about his or her Fifth Amendment right to remain silent." Noting that the district court sentenced the defendant to only 6 months above the Section 924(c) mandatory minimum on the other charges in his indictment, the Sixth also stated that they had their "doubts that Haygood could have said anything to inspire the court to be even more generous in sentencing him." Nonetheless, the Sixth reiterated that in cases regarding a defendant's right to allocution, "prejudice is effectively presumed when allocution is overlooked because of the 'difficulty in establishing that the allocution error affected the outcome of the district court proceedings.'" Therefore, the Sixth Circuit remanded the case for resentencing.

Wednesday, December 10, 2008

Early Christmas Present in South Florida—Great Opinion Finding SORNA Unconstitutional

While this case is an out-of-circuit, district court case, the opinion is so good I wanted to note it here for those dealing with SORNA issues. The case is United States v. Edward Myers, No. 08–60064–CR–Zloch (S.D. Fla. Dec. 9, 2008). Judge William Zloch’s Final Order of Dismissal is 82 pages of thorough Commerce Clause analysis. In its conclusion, the court found that "Section 16913 [42 U.S.C. § 16913] transgresses entirely the limits set on Congress by the Commerce Clause. It cannot be defended except by adulteration of the text of the Constitution and controlling caselaw." The court goes on, "Section 2250 [18 U.S.C. § 2250] also exceeds that grant of power made to Congress under the Commerce Clause." The court delves into the Commerce Clause jurisprudence, analyzing the evolution of the case law and application of Lopez, Morrison, Raich, and Scarborough to SORNA. I cannot do the analysis justice here, in this limited space, but here are some highlights:

1) "Nothing links the registration of sex offenders with interstate commerce."
2) Section 16913 does not regulate any activity—rather, it regulates a status, that of being a sex offender.
3) Section 2250 does not criminalize travel for an unlawful purpose, nor does it criminalize failing to register during travel. Jurisdictional element of "interstate travel" is indefinite, requiring only that the person travels/has traveled in interstate commerce at some point. No purpose attached to travel and travel is divorced from the failure to register.
4) Section 2250 is not aimed at travel at all.
5) In dicta, the court does classify Section 2250 as "simply an administrative regulation of persons who are supposed to register under § 16913" and cites Smith v. Doe, which is not the most helpful approach for an Ex Post Facto challenge. This characterization of the SORNA and citation to Smith v. Doe is not a real strike against the opinion though, as many defenders are doing an excellent job meeting these challenges already.
6) The court goes so far as to suggest that Scarborough and the "minimal nexus test" have been called into question by United States v. Jones, 529 U.S. 848 (2000).

The court emphasizes that Congress "has no power to regulate a person simply because at some earlier time he has traveled in interstate commerce." The opinion is worth a read if you have a SORNA and/or Commerce Clause issue.

Tuesday, December 09, 2008

Application of Career Offender Guideline Senseless and Adds Nothing to Goals of Deterrence and Rehabilitation

This sentiment, however, was not shared by the majority of the panel.

In United States v. Smith, No. 07–5377 (6th Cir. Dec. 2, 2008), the panel of Chief Judge Boggs and Circuit Judges Merritt (pictured) and Griffin considered two issues: 1) denial of a motion to suppress evidence, and 2) reasonableness of a sentence based on application of the career-offender guideline. The panel affirmed the district court’s denial of the motion and the 240-month sentence.

Facts: Because of the cooperation of two confidential sources, police made a pretextual traffic stop of Mr. Smith. After stop, police officer had enough information to establish probable cause to arrest Mr. Smith.

Officer transported Mr. Smith to police post. Warrant for search of Mr. Smith’s person and the vehicle was issued. 34 grams of crack were found on Mr. Smith’s person.

Mr. Smith had three prior sentences—all three had been imposed on the same day, but one of the underlying offenses was separated from the other two by an intervening arrest.

Procedural History: Mr. Smith was indicted. Motion to suppress evidence denied. Mr. Smith pleaded guilty. Court sentenced Mr. Smith to 240 months (career offender—range of 292 to 365 months).

Major Points in Majority Opinion:
District court found search-warrant affidavit did not establish probable cause, but Leon good-faith exception saved the evidence from suppression. Also found that officers had probable cause to arrest Smith and could search him incident to arrest.
2) Majority held that there was probable cause to arrest Smith, that the officers did arrest Smith when they handcuffed him and took him to the post, and that the search was lawful, as it was incident to the arrest. Did not get to Leon. Search incident to arrest need not take place at site of arrest. Substantial time may elapse between arrest and search.
3) Fact that officers made effort to get warrant does not impact lawfulness of search. The fact of the lawful arrest validates the search.
4) Sentencing—prior sentences imposed on the same day are separate and unrelated if the offenses underlying the sentences were separated by an intervening arrest.

Interesting Dissent by Judge Merritt:
1) Current version of Guidelines (not those in force at time of offense or sentencing) should apply.
2) Current Section 4A1.2(a)—last sentence of this section says to count any prior sentence covered by (A) or (B) as a single sentence. Clause B addresses sentences imposed on the same day. So, the sentences should be counted as a single sentence. (Ignores the intervening-arrest language. Sees contradiction in language that creates ambiguity, so Rule of Lenity requires Mr. Smith to get the benefit of the doubt.)
3) "[N]o sentencing principle, purpose or goal of punishment is given for this ultra-severe sentence." The "sentence senselessly adds 10 more years of costs to the federal taxpayer and adds nothing to the goals of deterrence and rehabilitation."

Tuesday, December 02, 2008

Violation of 18 U.S.C. § 3553(c) constitutes plain error

In United States v. Blackie, Case No. 07-2002, a panel majority in the Sixth Circuit held a district court’s failure to comply with 18 U.S.C. § 3553(c)(2) constitutes plain error. (Section 3553(c)(2) requires district courts to give specific reasons for imposing a sentence that falls outside the Guidelines range).

There, defendant Blackie had pled guilty to possessing 22 images of child pornography. The PSR recommended an adjusted offense level of 25 and a criminal history category of I. The district court rejected the PSR’s proposal to enhance Blackie’s sentence for possession of masochistic materials (as the vast majority of the images were not masochistic) and also rejected the proposed enhancement for the number of images (as 22 images is not comparable to other cases where thousands of images are involved). With the district court’s revisions, Blackie’s adjusted offense level was 20, which corresponded to an incarceration term of 33 to 41 months. However, after consideration of the 18 U.S.C. § 3553(a) factors, the district court sentenced Blackie to 42 months of incarceration. The district court did not acknowledge whether the sentence imposed was in excess of the Guidelines range, did not identify the final offense level, and did not clarify whether it had rejected the specific enhancements or simply reduced their numerical levels.

The exact nature of the district court’s sentencing determination was not known until it issued its written judgment entry and indicated Blackie’s sentence was "above the advisory guideline range." The judgment entry also indicated the masochistic materials enhancement was reduced from four levels to one level, and the two-level enhancement for the number of images was rejected entirely. The judgment entry did not indicate the district court’s reasons for sentencing outside the Guidelines range and left blank the section of the judgment entry designated for setting out facts justifying the sentence.

The panel majority held the district court plainly erred when it did not refer to the applicable Guidelines range and failed to provide its specific reasons for an upward departure or variance at the time of sentencing or in the written judgment entry. In doing so, the panel majority joined the Sixth Circuit with the Second, Tenth, and District of Columbia Circuits on this issue. The majority added that, treating a violation of 18 U.S.C. § 3553(c) as a plain error will help maintain its requirements as mandatory and not merely some formality that can be ignored without consequence.

Judge Sutton notes in his partial concurrence that there is a split in the federal circuit courts on the issue of whether a violation of 18 U.S.C. § 3553(c) constitutes plain error.

The Fifth and Sixth Amendments Live to Fight Another Day

In Thompkins v. Berghuis, Case No. 06-2435, the Sixth Circuit granted habeas relief due to violations of defendant Thompkins’ rights under the Fifth and Sixth Amendments. At the state trial level, Thompkins moved to suppress statements he made during his post-arrest interrogation. The interrogating officer testified he questioned Thompkins for approximately three hours and that he read Thompkins his Miranda rights. Thompkins was alleged to have orally confirmed his understanding of his Miranda rights but refused to sign the form acknowledging those rights. The interrogating officer admitted that, during the first two hours and forty-five minutes of the interrogation, Thompkins consistently exercised his right to remain silent, but claimed he understood Thompkins’ conduct in making eye contact, making a nod of his head, looking up, and sporadically stating "yeah," "no," and "I don’t know" as engaging in limited conversation.

The panel found the state court’s determination that Thompkins’ participation during the interrogation demonstrated voluntary waiver of his right to remain silent was objectively unreasonable. The panel also found the state court’s determination unreasonably applied federal law because the complete lack of context regarding Thomkins’ alleged head nod, sporadic speech, and eye contact did not permit a finding of waiver. The panel further found there was no implied waiver because there was no evidence of a two-way conversation between Thomkins’ and the interrogating officer. The panel concluded Thompkins’ only message to the interrogating officer was that he did not wish to waive his right to remain silent.

The panel also concluded Thomkins’ was also entitled to relief on his ineffective-assistance-of-counsel claim. At trial, the prosecution introduced the testimony of a separately tried co-defendant who was acquitted of the shooting charges at issue in Thompkins’ case but convicted of weapons-related charges. Thomkins’ trial counsel did not request a jury instruction that informed the jury it could use the evidence of the co-defendant’s acquittal only to assess the co-defendant’s credibility. The panel held Thomkins’ trial counsel was ineffective for failing to request a limiting instruction. The panel also held Thompkins was prejudiced by his counsel’s failure as the "central strategy at trial involved pinning the blame on [the co-defendant]." Because the jury heard evidence, from "multiple witnesses," that the co-defendant was acquitted, evidence of the co-defendant’s acquittal likely exerted a powerful influence on the jury to convict Thompkins.

In its holding, the panel was careful to correct the district court’s application of Strickland. The panel made clear the prejudice component of Strickland should not have been tied to the underlying purpose or the intent of the prosecutor in introducing the evidence. Rather, the prejudice component is tied to error’s effect on the outcome.

Flexibility of the (2007?) Marijuana Equivalency Table

In United States v. Brown, Case No. 07-5465, the Sixth Circuit amended its prior opinion after the government moved for rehearing. Defendant Brown had pled guilty to possessing both crack and powder cocaine. In the original opinion, the panel remanded Brown for resentencing to allow the district court to resentence Brown with the benefit of the November 1, 2007 Amendments to the Sentencing Guidelines regarding crack cocaine calculations.

The government petitioned for rehearing and argued remand was unnecessary because remand would not lower Brown’s sentencing range. In response, the Sixth Circuit issued an amended opinion, addressing the process by which offenses involving crack cocaine and another drug require conversion to marijuana to calculate the offense level. The panel found the conversion table included in the 2007 Amendments generally provides the intended two-level decrease in multiple drug situations, but, sometimes, inexplicably results in a greater offense level, even in cases involving inconsequential amounts of a second drug.

In Brown’s case, under the 2007 Amendments, his offense level for possessing 15.2 grams would have been 24. However, when crack cocaine is converted to marijuana under the equivalency table accompanying the 2007 Amendments, Brown’s resulting offense level would have been 26 – exactly what he would have received under the prior guidelines – even before adding the converted amount of the powder cocaine. This result would have denied Brown the benefit of the 2007 Amendments, and struck the panel as particularly arbitrary in light of the small amount of powder cocaine he possessed (which of course triggered the conversion in the first place) and inconsistent with both the substance and the policy of the 2007 Amendments.

The panel ultimately held "the marijuana equivalency table used in determining the offense level for crimes involving crack and another drug are not controlling for purposes of 18 U.S.C. § 3582(c)." The panel also noted the 2007 Amendments create fact intensive anomalies that are best considered on an individualized basis by the sentencing court.

Effective assistance of counsel? Really?

In Hawkins v. Coyle, Case Nos. 05-4032/4049, the Sixth Circuit held petitioner Hawkins, who was sentenced to death, was not prejudiced by his trial counsel’s failure to conduct any mitigation investigation on Hawkins’ behalf. Hawkins had been convicted of committing four counts of aggravated murder, each of which carried two death penalty specifications, and two counts of aggravated robbery with a firearm. The jury recommended a death sentence on each of the aggravated murder counts, and the trial court sentenced Hawkins to death.

In his habeas petition, Hawkins argued his trial counsel was ineffective for failing to conduct any investigation for mitigation purposes, choosing instead to rely on a theory of residual doubt. The panel recognized "a complete failure to make an independent investigation of mitigating evidence will often not be reasonable." However, applying what it termed "a careful reading" of Wiggins v. Smith, 539 U.S. 510, 521-22 (2003), the panel believed trial counsel’s failure to investigate mitigation might not necessarily be deficient "so long as counsel’s decision not to investigate is reasonable under the circumstance."

In determining whether Hawkins’ circumstance excused trial counsel’s failure to investigate mitigation, the panel reviewed several Sixth Circuit cases in which it was found that trial counsel’s failure to investigate mitigating evidence prejudiced a capital defendant, as is required to succeed in an ineffective of assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (1984). The panel then concluded prejudice is not easily found when the petitioner was not himself a victim of abuse and did not suffer from mental disorders or difficulties.

In Hawkins’ evidentiary habeas hearing, Hawkins demonstrated, via affidavit, that his father was an alcoholic, his parents had divorced, his father physically assaulted his mother on one occasion, his sister died at the age of three, and he appeared to be depressed and tried at least twice to commit suicide at a young age. Noting the suicide attempts made this a "closer case," the panel ultimately held the affidavits did not demonstrate the prejudice needed under Strickland and denied habeas relief.

* * *

In Richards v. United States, Case No. 05-2135, the Sixth Circuit reviewed petitioner Richards’ claim that his trial counsel was ineffective for failing to file a direct criminal appeal on Richards’ behalf and, alternatively, for failing to consult Richards about filing an appeal. Richards’ trial counsel denied discussing an appeal with Richards but admitted he was unaware of the 10-day time limit to file a direct criminal appeal, stating "I don’t do federal appeals . . . .there’s no reason for me to be cognizant of those appeal rights."

The panel found the district court was not clearly erroneous in choosing to credit trial counsel over Richards on the issue of whether Richards specifically asked trial counsel to file an appeal on Richards’ behalf. The panel also found trial counsel’s failure to consult with Richards was not objectively unreasonable conduct as there were no non-frivolous grounds for appeal in the panel’s opinion as Richards received the sentence he bargained for in his plea agreement. For the same reasons, the panel found Richards suffered no prejudice as a result of trial counsel’s failure to file an appeal on his behalf and denied habeas relief.

Thursday, November 13, 2008

The Good and the Bad of 404(b)

Today in United States v. Davis, the Sixth Circuit reversed a district court's admission of 404(b) evidence offered by the government. Kevin Davis was charged with possession of more than 50 grams of crack cocaine with the intent to distribute and conspiracy to distribute crack cocaine. On appeal, Mr. Davis challenged both the sufficiency of the evidence offered to support the conspiracy conviction, and the government's introduction of prior acts evidence against him during trial. The Sixth Circuit found the evidence sufficient, but that the district court erred in admitting the 404(b) evidence.

At trial, the government sought to introduce evidence of a prior sale of marijuana by the defendant, using his now government-witness cousin to set up his sale. Because the government alleged that the same cousin was used to set up the sale charged in the indictment, the government sought to introduce evidence of this prior sale as proof of "whether the other act was committed in preparation for the offenses he is on trial for, or as part of the pattern of related conduct." The Sixth Circuit found that these were not legitimate purposes in the current case.

First, the Sixth circuit found that the prior sale of marijuana was not necessary for the completion of the sale of crack cocaine. The court instructed that for 404(b) evidence to be properly admitted under the preparation exception was limited to evidence that supported a finding of preparation "for the instant offense." Because the sale of marijuana could not be shown to be in preparation for the sale of crack cocaine, the Sixth Circuit found that this was an improper purpose for admitting the evidence.

Second, the court found that "pattern of related conduct" was not one of the permissible purposes enumerated in 404(b). The Court did find that pattern is often used to establish another permissible purpose, that of the identity of the defendant. However, the Court noted that the pattern evidence was not introduced in this case to show the defendant's identity, and that Mr. Davis's identity was not at issue.

Finally, the Sixth Circuit did the government's job for them on remand going into a long discussion regarding whether or not Mr. Davis's intent was at issue, and whether that intent could have been properly used to support the admission of the prior act evidence. The Court did find that the government did not argue, and the district court did not instruct on identity, so that it could not be properly used for that purpose under the current posture of the case. However, when the case is remanded for a new trial, the Sixth wanted to make sure to identify intent as the buzz word the prosecutor should argue when seeking to introduce the identical evidence at the new trial.

The Sixth Circuit, at least, did note that "[u]sing pattern to show intent is different from using it to show propensity, but it is close enough that it increases the importance of a clear instruction." Under the Sixth Circuit's theory, any prior bad act that can even remotely be related to a specific intent crime is admissible to prove that specific intent crime, but the district court needs to give a proper instruction. Seeing as the court remanded the case for a new trial, this example of the Sixth Circuit instructing the government on how they should properly prosecute their cases is rather disturbing. What is even more disturbing is that the Sixth Circuit failed to analyze under 403 whether or not the admission of an unrelated marijuana sale to show the (propensity of the defendant to engage in drug sales, c'mon that is really what is going on here) intent of the defendant to conspire to distribute the drugs was more probative than prejudicial.

McKeague wrote a concurrence, stating that he would have affirmed the conviction "had the issue of identity been raised on appeal."

Thursday, October 30, 2008

Search Warrant Requirement on Life-Support

The Sixth Circuit recently took another step on its road to rendering the search warrant requirement of the Fourth Amendment meaningless. See, e.g., United States v. Allen, 211 F.3d 970 (6th Cir. 2000) (en banc) (upholding search warrant based on allegations of CI having seen unstated quantity of cocaine in residence without any evidence that drugs would be present when warrant executed), and United States v. Pinson, 321 F.3d 558 (6th Cir. 2003) (upholding search warrant based on purchase of 1 rock of crack cocaine from residence without any other proof of connection of seller to residence or that any other drugs would be found 5 days later)*. In a January 2006 post to this blog titled "The Drug Exception To The Fourth Amendment," I noted a trend toward decreasing the Fourth Amendment burdens on law enforcement in drug cases. In that post, I discussed United States v. Newton, 389 F.3d 631 (6th Cir. 2004), in which the Court of Appeals created a presumption that evidence will exist in the home of anyone charged with being a dealer in drugs. This inference was extended last year to those suspected of manufacturing drugs for distribution in United States v. Kenny, 505 F.3d 458 (6th Cir. 2007). The effect of these rulings is that in cases of felony drug possession or manufacturing, the government is relieved of its burden to establish that there is probable cause to believe that the thing sought is on the property sought to be searched.

Now the Sixth Circuit in United States v. (David) Williams, No. 06-2018 (6th Cir. 2008), has extended that rationale to ANY search of a suspect's home for the fruits or instrumentalities of on-going criminal activity. The warrant application in Williams contained information that Williams had recently removed 2 guns of his from someone else’s home and had used 1 of them to rob a drug dealer of 5 pounds of marijuana. There was no information connecting either of the guns to the location to be searched. In fact, as Judge Moore notes in her dissent, the information known to the police was that he kept guns at someone else’s house or in his car (where a gun was found by police in a separate incident during the time in question). Regardless, the majority upholds the validity of the search warrant by holding that where there is on-going criminal activity there is an inference that the target suspect will keep evidence of the criminal activity where he lives. (There was also an open question whether Williams lived at the address on the search warrant given that he had listed two other addresses as his residence at his two other arrests during the time in question.)

In its opinion, the majority – Judges Siler and McKeague - cites United States v. Bethal, 245 Fed.Appx. 460 (6th Cir. 2007), 2007 WL 2286541, for general search warrant propositions of law. They do not, however, cite Bethal for its holding, which refused to extend the "drug-dealing" presumption to cases involving allegations of gang affiliation. Perhaps this is so because Judge McKeague dissented in Bethal and would have allowed the search based on evidence of on-going criminal activity. The holding in Williams is exactly that urged by Judge McKeague in his dissent in the prior-existing, but unpublished, Bethal decision.

This result can only be accomplish by ignoring the history of the Bill of Rights and in derogation of the Court’s constitutional duty to act as a check on the actions of the executive branch of government. The people of the soon-to-be United States originally rejected the proposed Constitution because it did not contain an enumeration of the rights of the people, something that the Framers had thought was not necessary to enumerate because they were known to all. The result was the Bill of Rights. It’s creation came out of the experience of the people that no government – royal or democratic - could be trusted with power. The Bill of Rights, then, serves as proof of the people’s recognition that government cannot be trusted with certain powers, and their intention that the exercise of those powers be carefully circumscribed. This recognition that government cannot be trusted with power, and the intention to carefully limit the exercises of that power, are at the heart of the design of the Constitution, with its system of checks-and-balances between the three branches of government. The result in Williams - relieving the executive branch of government of part of its constitutionally required burden before it exercises its power - is contrary to this whole notion that government power be controlled, if not by the branch wielding it, then by one (or both) of the other two. The burden in the Fourth Amendment - "probable cause" - is not very heavy, but it does exist. Or at least it did until this decision.

[*disclaimer: Pinson was my case. - SLC]

Thursday, October 02, 2008

"Impermissible Factors" Follow-up

As a follow-up to my recent blogpost about U.S. v. Davis, I did some research into what the Sixth Circuit had found to be "impermissible factors" outside of Davis. As a result, the list now includes:

– "defendant's behavior at trial" and prior arrests for which there were no known dispositions. United States v. Whitfield, 259 Fed.Appx. 830 (6th Cir. 01/15/08), 2008 WL 142782 (unpublished) (Per Curiam: Daughtrey & Cole, JJ., & Collier, D.J. (E.D.Tenn.)) (reversing upward variance as substantively unreasonable)

– the district court’s disagreement with Congress’ penalties. United States v. Ortega-Rogel, – Fed.Appx. – (6th Cir. 6/16/08), 2008 WL 2415917 (unpublished) (Norris, Martin, JJ., & Stamp, D.J. (NDWVa.)) (possession of false identification) (reversing upward variance as substantively unreasonable); United States v. Franklin and Clarke, 499 F.3d 578 (6th Cir. 8/28/07), rehrg and rehrg en banc denied 1/25/08 (Forester, D.J. (EDKy) & Gilman, J; Moore, J., concurring in the judgment) (18 U.S.C. § 924(c)) (reversing downward variance as substantively unreasonable).

– defendant’s post-conviction behavior. United States v. Sutherlin, 498 F.3d 316 (6th Cir. 8/8/07), rehrg and rehrg en banc denied 12/13/07 (Cole, Guy, & McKeague, JJ.) (reversing downward variance as substantively unreasonable) (but, see, United States v. Ragland, 2007 WL 1028845 (6th Cir. 2007), allowing use of post-conviction bad conduct to justify upward variance.)

– a lack of extraordinary circumstances that would justify such an extreme downward variance. United States v. (Haywood) Johnson, 239 Fed.Appx. 986 (6th Cir. 9/4/07), 2007 WL 2492405 (unpublished) (reversing downward variance as substantively unreasonable). [Ed.: doesn't this sound like Guidelines departure language?]

– lack of a compelling explanation. United States v. Fink, 502 F.3d 585 (6th Cir. 9/7/07) (Gibbons, Suhrheinrich, JJ., & Heyburn, CDJ (WDKy.) (reversing downward variance as substantively unreasonable). [Ed.: wouldn't that really be procedural unreasonableness?]

– consideration of the defendant’s likely state court sentence. United States v. Malone, 503 F.3d 481 (6th Cir. 10/4/07) (McKeague, Sutton, JJ., & Forester, D.J. (EDKy.)) (reversing downward variance as substantively unreasonable).

– doubt by the district court that the defendant intended to commit fraud. United States v. Hunt, 521 F.3d 636 (6th Cir. 4/11/08) (Rogers & Siler, JJ.; Martin, J., concurring in part and dissenting in part) (reversing downward variance as substantively unreasonable).

– justifications give for variance not supported by the record. United States v. (William) Hughes, – Fed.Appx. – (6th Cir. 6/26/08), 2008 WL 2604249 (unpublished) (Moore & Clay, JJ; Rogers, J., concurring) (reversing downward variance as substantively unreasonable).

Is that clear now? Do you have a clear grasp on what is and is not an impermissible factor? Because you may have to explain it to your district judge, so make sure.

Tuesday, August 19, 2008

Third Time Less Than Charming

In United States v. (William) Davis, No. 05-3784 (6th Cir. 2008) (Sutton, J., Boggs, C.J., & Keith, J.) , the Sixth Circuit reversed, for the second time (see 458 F.3d 491), a sentence of 1-day imprisonment and 3 years of supervised release for bank fraud. [Davis’ first appeal ended in a remand for re-sentencing. 397 F.3d 340 (6th Cir. 2005).] This time, the court reversed the sentence as substantively unreasonable on the ground that the district court used an "impermissible factor" as well as a discouraged factor in order to support the downward variance. This case continues a pattern in post-Booker sentencing by which the court cherry-picks those parts of the Supreme Court’s recent sentencing cases that support how the court wants to rule, while ignoring the broader changes to the landscape of federal sentencing.

The concept of an "impermissible factor" as the basis for substantive unreasonableness is not new in this Circuit. It was first used by Judge Moore in United States v. Webb, 373 F.3d 385 (6th Cir. 2005) (the same case in which Judge Moore "declined to hold that a sentence within a proper Guidelines range is per-se reasonable" at footnote 9) in describing in general terms evidence that might indicate that a district judge had acted unreasonably as related to the substance (length) of the sentence, but the court has never delineated what those impermissible factors would be.

What is new, however, is that since the court’s decision in Webb, the Supreme Court decided Gall v. United States, 128 S. Ct. 586 (2007), in which it addressed how courts of appeals must review the sentencing decisions of district courts post-Booker. Nowhere in its discussion of the proper method of substantive review of a sentence does the Court in Gall endorse or even mention the concept of an "impermissible factor" that might be determined by the appellate court. In fact, one of the Eighth Circuit’s justification’s for reversing Gall’s sentence was that the district court had given significant weight to an "improper factor," the "‘impetuous and ill-considered’ actions of persons under the age of 18." 128 S. Ct. at 601. In reversing the Eighth Circuit, the Supreme Court noted that such a factor fit under "character of the defendant" -- a factor under § 3553(a) -- and was supported by studies which had been cited by the Supreme Court itself.

To support the concept of an "impermissible factor" in Davis, the Sixth Circuit was forced to reach beyond Gall and to cite United States v. Bailey, 488 F.3d 363 (6th Cir. 2007) (decided six months before Gall), and United States v. Hunt, 521 F.3d 636 (6th Cir. 2008) (relying on pre-Gall case law). [A petition for rehearing has been filed in Hunt and is still pending. The court has ordered the government to respond to the petition, which argues in part that § 3553(a) does not limit the factors the court can consider and that the only factors that might be categorically impermissible would be so because the Constitution or other statute prohibits it.]

In Davis, the court found that the 14-year delay between the commission of the crime and the sentencing hearing is an "impermissible factor" that the district court should not have considered. While not deciding whether such delay "might legitimately bear on a trial court’s exercise of sentencing discretion," the court would now require a showing "that the government bears unjustified responsibility for the delay and that the defendant suffered from the delay." (Slip Op. 5) (No authority is given in Davis for this standard, so it appears to have been made up for this case.) It states the issue as "whether the delay supplies an independent reason for a deviation from the" guidelines. Id. Judge Sutton notes, "Section 3553(a) does not list the amount of time that passed between the date of a defendant’s crime(s) and his sentencing as a basis for lowering or raising a sentence." Id.

By requiring a defendant to show suffering and unjustified responsibility on the part of the government, the court has curbed the discretion of district courts in a manner inconsistent with § 3553(a). Just as "delay" is not expressly listed in § 3553(a), neither is "delay caused by the government and resulting in suffering." In fact, it is not difficult to conceive of ways in which delay might fit into the factors in § 3553(a). In other cases it has been noted that delay between the offense and the sentence lessens deterrent and retributive value of any punishment. See, e.g., Knight v. Florida, 528 U.S. 990, 120 S. Ct. 459, 462 (1999) (Breyer, J. , dissenting) ("At the same time, the longer the delay, the weaker the justification for imposing the death penalty in terms of punishment's basic retributive or deterrent purposes."); Coleman v. Balkcom, 451 U.S. 949, 952 (1981) (Stevens, J., concurring in denial of cert.) ("The deterrent value of any punishment is, of course, related to the promptness with which it is inflicted."). In short, the court of appeals should not be putting its thumb on the scale by categorically prohibiting the consideration of delay unless certain conditions, seemingly created off-hand, are met.

The court also objected to the district court’s reliance on Davis’ age (70) at the time of sentencing in granting a variance, which it referred to as a "discouraged factor." While acknowledging that age might factor into sentencing considerations, the court found that it certainly would not warrant a sentence of 1 day in a white-collar case. The court added the unsupported opinion that age would not even have been a mitigating factor had the defendant been sentenced at the time of the offense: "When he committed the crime, he was of an age [56] that would not likely bear on a guidelines range of 30 to 37 months." (Slip Op. at 6.) Yet, the Commission’s own empirical studies show that recidivism rates fall from 35.5% for offenders under age 21 to 9.5% for offenders over 50. Measuring Recidivism: The Criminal History Computation Of The Federal Sentencing Guidelines, at 12, 28 (2004) (emphasis added.)

Furthermore, by the very terms of § 5H1.1, age is discouraged only for purposes of departure, not variances. Indeed, a number of courts have acknowledged age as an appropriate sentencing consideration. See, e.g., United States v. Wadena, 470 F.3d 735 (8th Cir. 2006) (where 67 year old defendant convicted of mail fraud and guidelines 18-24 months, proper for district court to impose below guideline sentence of probation, in part, because "Wadena’s age and recent deterioration in his health reduce the risk of re-offending, however, as do the terms of his probation"); United States v. Lucania, 379 F. Supp. 2d 288, 297 (E.D.N.Y. 2005) ("Post-Booker courts have noted that recidivism is markedly lower for older defendants."); United States v. Carmona-Rodriguez, 2005 WL 840464, *4 (S.D.N.Y. Apr. 11, 2005) (unpublished)( where 55-year-old woman pled guilty to distribution of drugs sentence of 30 months [below guideline range] proper in part "in view of the low probability that Carmona-Rodriguez will recidivate"); United States v. Carvajal, 2005 WL 476125 (S.D.N.Y. Feb. 22, 2005)(unpublished) (in drug case, career offender guideline of 262 months too great; client will be 48 when he emerges from prison; the goal of rehabilitation "cannot be served if a defendant can look forward to nothing beyond imprisonment. Hope is the necessary condition of mankind, for we are all created in the image of God. A judge should be hesitant before sentencing so severely that he destroys all hope and takes away all possibility of useful life. Punishment should not be more severe than that necessary to satisfy the goals of punishment." ); United States v. Nellum, 2005 WL 300073 (N.D. Ind. Feb. 3, 2005) (unpublished) (where 57-year old defendant convicted of distributing crack cocaine facing guideline sentencing range of 168-210 months, sentence of 108 months because court had also to consider the need to deter Nellum and others from committing further crime under § 3553(a)(2); the court’s sentence will result in release at 65 and "[t]he likelihood of recidivism by a 65 year old is very low").

Age would therefore be relevant to at least four of the § 3553(a) factors: characteristics of the defendant, deterrence, recidivism (protecting the public from further crimes), and the need for rehabilitation. While Judge Sutton acknowledged that a district judge post-Booker can consider more than under the mandatory Guidelines, he refused to support the extent of the variance in this case.

The irony (or worse) is that judges who have affirmed district courts that clearly failed to even address a defendant’s mitigation arguments here reversed a district court because it did not explain in detail the justification for the downward variance it gave. See, e.g., United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc) (Judge Sutton writing for the majority, which included Chief Judge Boggs, affirming a district court’s rote recitation of the 3553(a) factors in the face of very specifically offered mitigation as not "plain error") This would seem to continue the difference in treatment on appeal of downward variances from either within-the-range sentences or upward variances noted by Judge Keith in (continuing the irony) the previous opinion in Davis, 458 F.3d 491 (6th Cir. 2006), in which he noted in his dissent, "the current trend across the circuits is to afford less deference to district court sentences that depart below the advisory guideline range over sentences that depart upward from the advisory guideline range." 458 F.3d at 501.

One concern is that this is but a back-door way of giving more force to the now-advisory-only specific offender characteristics in Part H of Chapter 5 of the Guidelines. As it stands now, the court has set forth a vague standard, alluding to a category of factors that are impermissible, but whose content we can only guess at because there was never such a thing as an impermissible factor except those that the Sentencing Commission says are impermissible. In the § 3553(a) context, independent of the Commission, we just won't know what the "impermissible factors" are until the court of appeals tells us, on an ad hoc basis. Stay tuned.

[with assistance from (and thanks to) Jennifer Coffin]

Another Day, Another Ruling on Preserving Issues for Appeal

For the second day in a row, the Sixth Circuit contends with whether a defendant properly preserved his appellate rights. In United States v. Matromatteo, the Sixth Circuit was confronted with a situation where a defendant approached the district court and stated that he was pleading guilty, but preserving his right to appeal the denial of his Motion to Suppress and Motion for a Franks Hearing. The defendant did not have a written plea agreement, but the government did not expressly object to the defendant's contention that his plea was conditional. On appeal, the Sixth Circuit found that the requirement that the conditional plea be in writing is not jurisdictional:

"We hold that Mastromatteo’s failure to obtain a clear, written conditional plea is not a jurisdictional bar to our hearing this appeal. What is apparent from the plea hearing is that Mastromatteo made it clear that he wished to preserve his right to appeal, the government acknowledged that he could appeal, and the court accepted that."

The Court went on, "[d]espite technical infirmities, Mastromatteo’s plea was indeed a conditional plea. The failure to follow the exact format of Rule 11(a)(2) is no bar to Mastromatteo’s appeal because “Rule 11(a)(2)’s intent and purpose have been fulfilled.” Yasak, 884 F.2d at 1000; see also FED. R. CRIM. P. 11(h)."

So, apparently for the Sixth Circuit, a conditional plea is preserved when the defendant makes it clear his intent and the government's not objecting to that intent.

The Sixth then found that the district court did not clearly err in finding that the defendant did not have standing to challenge the search of a residence.

The Sixth offered the opinion that even if they had found standing, the defendant's Motion for a Franks hearing was correctly denied. The Sixth also emphasized its standard of review for denial of Franks motions was the same standard as a motion to suppress, i.e. factual findings for clear error and conclusions of law, de novo.

So for the second day in a row, the Sixth publishes cases instructive to defense counsel that, while all they need to do to preserve pretrial motions for review when they plead guilty is to express the desire to enter a conditional plea (so long as the governemnt doesn't object), they also need to expressly preserve all the Motions they wish to appeal in that conditional plea.

Monday, August 18, 2008

Preserving Motions to Compel

Today in United States v. Alexander the Sixth Circuit affirmed a district court's denial of a motion to suppress in a cocaine trafficking case. The facts are straightforward. An inspection of a mail package revealed cocaine. After getting a search warrant, the officers conducted a delivery to the address on the package, and then subsequently entered the house. During their search of the house, one officer grabbed the defendant, and proceeded to torture him by beating and choking him until he told the officers where the package was. The defendant's injuries required treatment at a hospital. After the defendant was charged, he filed a Motion to Suppress and a Motion to Compel Discovery of all information developed during the internal investigation of the officer that had beaten him.

The Sixth Circuit affirmed the district court's denial of the Motion to Suppress finding that, even with the one officer's beating the defendant into giving a statement, the other officers would have inevitably discovered the package as a result of a search incident to the search warrant. The Sixth Circuit also found that the appropriate avenue for redressing the officer's beating and choking of the defendant was not through suppression, but rather a S 1983 lawsuit.

In an interesting footnote 3, the Court found that a previous panel in U.S. v. Buchanan, 904 F.2d 349 (6th Cir. 1990), had not adopted a test for inevitable discovery formulated by the Fifth Circuit, specifically requiring that the officers be pursuing an alternate line of investigation prior to the misconduct. However, when one looks at Buchanan, it appears that the panel there did adopt the test requiring the alternate line of investigation, but just found that the government's evidence on that issue lacking. Id. at 357 ("The agents in this case were not pursuing an alternate line of investigation of Buchanan."). So it appears that the Alexander panel is attempting to lessen the government's required showing to supprot the inevitable discovery exception. I would submit that this is an issue that will need to be clarified through further litigation, as it appears a subsequent panel is attempting to overrule a prior panel's decision directly on point.

But the most important lesson to be taken from Alexander is that when one is entering into a conditional plea with the government, the Sixth Circuit is going to require the defendant to expressly preserve all adversely decided pretrial motions in order that they may be reviewed on appeal. The Sixth in this case found that the defendant had not preserved the denial of his Motion to Compel through the conditional plea related to his Motion to Suppress. Judge Cole concurring would have found that the conditional plea preserved the Motion to Compel because it was intertwined with the defendant's Motion to Suppress. Regardless, the lesson here is that when one is entering into a conditional plea, expressly preserve all adversely decided pretrial motions in that conditional plea or the court will view them as waived.

Thursday, August 14, 2008

U.S. V. Olsen

In an interesting decision today, the Sixth Circuit reversed a sentence where the Guideline range was predicated upon the 1-to-100 ratio of marijuana equivalency for live, growing marijuana plants. The defendant in this case pled guilty to possession with intent to distribute marijuana being grown by her husband in their basement. The PSR attributed 100 grams of marijuana to the defendant for both the 168 live plants found in their home and the 137 harvested plants found in the home, even though there was an actual weight of marijuana available for the harvested plants (557.8 grams). After reviewing two prior, somewhat conflicting, decisions on the issue, U.S. v. Stevens, 25 F.3d 318 (6th Cir. 1994) and Oliver v. United States, 90 F.3d 177 (6th Cir. 1996), the Sixth Circuit made a distinction in cases where a defendant pleads to possession of marijuana as opposed to manufacturing marijuana, "[i]nasmuch as police found the harvested amount of consumable marijuana, as in Stevens, there is no need to speculate regarding the amount of marijuana that could have been produced by the plant such that the 1-to-100 ratio is unnecessary." For the Court the deciding factor was that the defendant had pled guilty to merely possessing the marijuana for sale, not manufacturing it. So what this decision teaches is that a defendant is in a better position to not have the arbitrary 1-to-100 ratio applied to the weight of the marijuana attributable to him if he pleads to possession as opposed to manufacture. Therefore, if you have a client that is facing two counts of each, see if you can't get to plead to only the possession count.

Another lesson, is that the 1-to-100 ratio propogated by the Sentencing Commission is complete bunk. Under their calculations, the defendants here should have been able to harvest 13,700 grams of marijuana from the harvested plants. Instead, they actually harvested only 557.8 grams. I don't know how the Sentencing Commission would account for the 13,142.2 gram disparity between the academic weight propounded in its chambers and the actual weight of the marijuana grown by a person actually engaged in the activity. I believe this ratio is not based upon good policy (although I have to admit to not examining its history very closely at this time) and appears to be potentially vulnerable to a Kimbrough-esque challenge.

Tuesday, July 22, 2008

Alice Batchelder: Gall and Kimbrough didn't happen, Different ways to abuse your discretion announced

Sorry for the lack of posts but it has been hectic lately. Regardless, a new decision by the Sixths today prompted me to need to post again. On remand from the Supreme Court, a panel of the Sixth Circuit vacated and remanded a district court's below-guidelines sentence. In United States v. Funk, Judge Batchelder and District Court Judge Bell found that, regardless of the abuse of discretion standard announced in Funk's companion cases of Gall and Kimbrough, a below guideline sentence was unreasonable. In Mr. Funk's case, he was deemed a career offender by the Guidelines with a then mandatory range of 262 to 327 months. The district court initially imposed a sentence at the low end of this Guideline range, but that sentence was later reversed and remanded for consideration in light of Booker. At the resentencing, the district court determined that a sentence in line with that Guideline was too harsh, and it eventually sentenced the defendant to 150 months.

Even with the newly announced abuse of discretion standard from the Supremes, the majority in Funk today found "that the district court did not justify the variance in this case adequately, and therefore, the sentence is substantively unreasonable." Funk at *2. The majority identified three questions that appears to be some new formulation for the substantive reasonableness test derived from Gall's suggestion that variances in "mine-run" cases may be subject to closer review, "(1) Is this an atypical case, outside the Guidelines' 'heartland' of cases, that entitles the district court's decision the 'greatest respect'; or, is it--as the evidence suggest--a 'mine-run," case warranting some 'closer review'; (2) If this is a 'mine-run case,' what exactly is this 'closer review'?; and (2) Taking into account the appropriate standard of deference--greatest respect or closer review--did the district court abuse its discretion by imposing a sentence of only 150 months when the advisory Guidelines range was 262 to 327?" Id. at *5-6. According to the majority, "[t]hese are questions of law for this court to decide and we have determined that there is no need to remand this case to the district court for further development of the record." Id at *6. Finally, what appears to be the heart of the majority's opinion is that it rejects the district court's judge's determination that the career offender category was too harsh on the defendant. Batchelder writes, "[b]y stating that 'the career offender enhancement [is] excessive and unreasonable," the sentencing judge appears to have concluded that--because a controlled substance offense involving marijuana is not as serious as one involving 'cocaine, heroin, ecstasy, methamphetamine, or firearms'--Guideline S 4B1.1 (the career offender enhancement) should not include marijuana convictions." Id. at 7. The majority found that the district court's justification was an "improper judicial explanation for a departure, as it has nothing to do with S 3553(a) factors." Id. Finally, the majority found that the sentence was substantively unreasonable because, "the sentencing court clearly indicated that it would not sentence Funk as a career offender, despite the clear direction by Congress, see 28 U.S.C. S 994(h), that offenders such as Funk be sentenced as such." Id. at *8. So the district court abused it's newly found discretion by going down in the sentencing range.

In an intriguing occurrence, Chief Judge Boggs wrote a dissent from Judge Batchelder, finding that "[w]hile a more extensive, fact-laden, or lyrical exegesis might have been possible or preferable, what I take from the record is that the judge did consider thoughtfully the facts of this case and did enough that he did not abuse his discretion." Perhaps this conflict between Boggs and Batchelder could be remedied by a Petition for Rehearing.

Wednesday, June 04, 2008

White En Banc today

United States v. White, dealing with the propriety of the use of acquitted conduct at sentencing is being argued en banc this afternoon. White was the two page opinion last October that stated that two of the three members of the panel had voted to reverse the sentence before United States v. Mendez was decided, upholding the use of acquitted conduct. The panel in White specifically requested that the defendant seek this en banc review.

Douglas Berman of Sentencing Law and Policy blog fame has a post on his role arguing for the amici in White.

Monday, June 02, 2008


The ruling in the panel decision in United States v. Vonner seemed pretty straight-forward by post-Booker standards – post-Booker, a district court needs to explain its ruling sufficiently that the appellate court can perform its reasonableness review, and must address any mitigation urged by the defense in favor of a downward variance. Despite Judge Siler’s dissent, it was with some surprise that the Court of Appeals granted the government’s petition for en banc review, particularly in light of the cert grants in Rita and Claiborne.

As has been noted on this blog before, from the very beginning there has been a continuing split within the Sixth Circuit about how the post-Booker process would work. See, Paradigm Shift or Business As Usual? A Brief History of Reasonableness Review in the Sixth Circuit , Feb. 13, 2007, post. This has also included how much or how little a district judge needed to say in imposing sentence in order to comply with Booker. See, e.g., United States v. Richardson, 437 F.3 550 (6th Cir. 4/17/06) (clarifying that in addition to addressing the 3553(a) factors, the district court must also, where a defendant raises a particular argument in seeking a sentence below the Guidelines, address the proffered mitigation and explain its basis for rejecting it.); compare to United States v. Jones, 445 F.3d 865 (6th Cir. 4/17/06) (noting that a sentence within the applicable Guidelines range does not lose its presumption of reasonableness whenever a district judge does not explicitly address every defense argument for a below-Guidelines sentence; the dissent points out that circuit precedent required that the record reflect both that the district court considered the defendant’s argument and that the judge explained the basis for rejecting it.); United States v. Ray, 2006 U.S. App. LEXIS 18285 (6th Cir. 7/19/06) (unpublished) (reversing a 600 month sentence due to the district court’s failure to adequately explain the 25-year upward departure.); United States v. Harden, No. 05-4079 (6th Cir. 8/16/06) (reversing as procedurally unreasonable an 188-month sentence and noting that a district court’s perfunctory statement that it has considered the § 3553(a) factors, even when repeated, does not relieve the court of its obligation to explain how the factors informed its ultimate determination.)

The grant of en banc review in Vonner, then, seemed to signal an intention by the Court of Appeals to clear up the confusion in this area. Given that the panel’s decision, however, found that the district court’s sentencing explanation was inadequate, there would seem to be no reason to grant en banc review in this case unless the en banc court was inclined to agree with Judge Siler’s dissent and find that the district court’s statement was sufficient. But events would work to muddy the waters.

The panel decision in Vonner was released on June 29, 2006, and en banc review was granted on October 12, 2006. The decision in Rita was released on June 21, 2007, and Gall (the successor to Claiborne) and Kimbrough were argued on October 2, 2007, and the opinions released December 10, 2007. The Vonner en banc decision was released February 7, 2008.

Given the guidance that the Supreme Court gave in Rita, Gall and Kimbrough concerning the need for a district court’s explanation of its sentencing decision, the en banc court would be hard-pressed to say that the explanation in Vonner sufficed, given that the defense clearly presented several well-supported grounds in support of its request for a downward variance, none of which were directly addressed by the district court. If the court granted en banc review to affirm the district court, it could hardly do so now, so what to do? Since the Court of Appeals apparently doesn’t have the option of dismissing an en banc grant as "improvidently granted," the resolution was to blame the defense attorney.

Despite all that it could have said about post-Booker sentencing, United States v. Vonner, 516 F.3d 382 (6th Cir. 2008), sidesteps that main issue and, instead, finds that the defendant’s failure to object to the district court’s minimal statement of sentencing reasons was a waiver that resulted in plain error review, which it found the defendant couldn’t meet. (Judge Sutton wrote the opinion which was joined by Chief Judge Boggs and Judges Siler, Batchelder, Gibbons, Rogers, Cook, McKeague, and Griffin. Judges Martin, Cole, Clay, Daughtrey, Moore and Gilman dissented.

As Judge Clay points out in his dissent, Vonner was sentenced only 26 days after the Supreme Court’s decision in Booker, and before the Sixth Circuit had explained the two components – procedural and substantive – of reasonableness review. While this timing is sufficient for the majority in its opinion to excuse the district court from knowing that it had to make a decent explanation for its sentencing decision, it is not enough for the majority to excuse defense counsel’s failure to specifically object on a ground not yet explained by the Court of Appeals. In Judge Clay’s view, such a ruling doesn’t meet standards that are "at least minimally fair."

It is not clear why the majority has such opposition to requiring a district court judge to explain why s/he is choosing a particular sentence and, if applicable, why s/he is rejecting a defendant’s specific request for a lower sentence. This does not appear to be too great a burden, and helps to facilitate review on appeal. Yet they persist in their opposition.

While the majority opinion offers nothing new for criminal defense practitioners in the Sixth Circuit, the different dissenting opinions require close reading by the defense bar. Judge Martin’s discussion of the Supreme Court’s basis for requiring an explanation by the sentencing judge, Judge Clay’s discussion of plain error review in the sentencing context and further discussion of the sentencing judge’s duty, and Judge Moore’s call to reject the presumption of reasonableness are all important reading for anyone doing sentencing hearings in federal court in this circuit. One thing is clear: while Vonner went out with a whimper, not a bang, this will not be the last word on the duty of sentencing judges to address the issues raised and clearly explain their decisions.

Thursday, May 22, 2008

Becoming Emboldened

Busy day in that the Sixth published four criminal cases: two direct appeals and two habeas cases.

The first of the direct appeals was United States v. Bullock, Case No. 07-5632. In Bullock, the defendant "made threatening telephone calls to the offices of several public officials, including United States Congressman Harold 'Hal' Rogers, Pulaski County Circuit Court Judge David Trapp, and Pulaski County Circuit Court Clerk George Flynn," stating that he "was going to 'get rid of' these officials." Police went to the defendant's home where they located a SKS semi-automatic rifle. He was initially charged with intimidating a judicial officer and terroristic threatening in Kentucky state court, but those charges were later dismissed. ATF agents subsequently discovered that at the time of his arrest, Mr. Bullock was subject to a domestic violence order. The defendant was prosecuted for being in possession of a weapon while subject to a domestic violence order under 18 U.S.C. S 922(g)(8). The defendant pled guilty. The PSR calculated Mr. Bullock's Guideline range to be 18 to 24 months after the defendant's base offense level of 14 was enhanced four levels for possessing a firearm in connection with another offense under S 2K2.1(b)(6). The defendant received a three level reduction for acceptance of responsibility. Mr. Bullock appealed the district court's enhancement, arguing that the the test for whether a firearm was possessed in connection with another offense, i.e. Application Note 14 to S 2K2.1 ("if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense respectively"), amounted to double counting because all firearms had the potential for facilitating another felony offense. The Sixth found that the district court enhanced the defendant's sentence "not because of the mere theoretical possibility that the firearm would be used in some unspecified crime in the future, but rather because of the very real likelihood that Bullock's possession of the [firearm] facilitated Bullock's threats to 'get rid of' several public officials, including a United States Congressman." The Sixth stated that they had "never found that the S 2K2.1(b)(6) enhancement can be applied simply because there is a theoretical possibility that the firearm may be used to commit a felony at some unspecified future time."

However, the Sixth's reasoning on how the possession of a firearm "facilitated" the defendant's making threatening telephone calls is weak. The Sixth finds it axiomatic that the possession of the firearm facilitated the threatening phone calls because Mr. Bullock "was undoubtedly emboldened in the commission of this offense by his possession of a semi-automatic rifle, to which he openly admitted ownership when officers arrived at his home." Unless the government is arguing that Mr. Bullock used the barrel of the SKS to dial the telephone, I personally do not see how possessing or not possessing a firearm while one is making threatening phone calls facilitates anything. It may facilitate a subsequent theoretical assault, but not the threatening phone call. Apparently in the Sixth Circuit, if you illegally possess a .45 caliber pistol that emboldens you to the point of committing tax fraud, then S 2K2.1(b)(6) applies. This test for facilitation is a dangerous precedent because any criminal committing any crime can be emboldened through the mere possession of a firearm, even if the firearm has no ability to facilitate the actual commission of the alleged offense. Defense attorneys should try to nip this "emboldenment" test for facilitation of another felony in the bud.

In the other direct appeal this morning, United States v. Smith, Case No. 07-1375, the Sixth Circuit unsurprisingly found that prisoners released from prison to a "community residential home" did not have a reasonable expectation of privacy in their home. In analogizing the community residential home situation to that of probationers, parolees, and prisoners, the Sixth found that the defendant was "treated as a 'prisoner' living in a 'community residential home'," because he was subject to continuous monitoring and had to ask permission to leave the home. Relying upon the Supreme Court's opinion in Samson v. California, 547 U.S. 843 (2006), the Sixth found that officer's warrantless search of the defendant's home did not violate the Fourth Amendment because "Smith had little, if indeed any, reasonable expectation of privacy in being free from a suspicionless search of his residence."

Because I rarely practice habeas law, I often skip over habeas cases because of the inevitable lengthy procedural details that are contained in the opinion. I know it is a bad habit, but I only have so much time. But Harris v. Haeberlin, Case No. 05-5591, is interesting enough for me to comment on. In Harris the defendant had been tried in Kentucky state courts for kidnapping, robbery, and being a persistent felony offender. In jury selection, the defendant challenged the state's use of its peremptory challenges as being motivated by race under Batson v. Kentucky, but the trial court found that the state had race-neutral reasons for the challenges. After his conviction in trial, but before his appeal to the Kentucky Supreme Court, the defendant discovered that an in-court video recorder had turned on during a recess and recorded the prosecutor's discussion of their use of peremptory challenges. After pursuing his state court appellate and post-conviction procedures, the defendant raised whether or not the trial court should conduct another Batson hearing based upon the newly discovered evidence at the district court, which was subsequently denied. The Sixth Circuit found that it was necessary to remand the case for the trial court to "reassess prosecutorial credibility in light of the videotaped evidence." This case appears to rest upon the unusual occurrence of the defendant actually having hard evidence, versus circumstantial evidence, of a prosecutor's use of race in his decision-making on peremptory challenges.

In a ruling that finds the improper admission of 404(b) evidence harmless, Cristini v. McKee, the other habeas case today, the Sixth Circuit reversed a district court's grant of habeas relief to a petitioner based upon "the prosecutor's introduction of evidence of prior convictions in the state's case-in-chief and the prosecutor's arguments that the Petitioner's prior convictions showed a propensity for violence." The Sixth Circuit reversed the district court's finding that the prosecutor's use of prior bad acts evidence to argue that the defendant had a propensity towards violence was error, but also finding that the Michigan Court of Appeals was correct in finding the error harmless in light of "the admissible evidence that established the Defendant's guilt." The defendant also argued that the prosecutions calling defense witensses liars in closing was misconduct. However, the Sixth Circuit found that it was not misconduct because "the prosecution's argument was coupled with a detailed analysis of the record. Each time the prosecutor said some witness had lied, he explained why the jury should come to that conclusion. While his repeatedly calling these witensses 'liars' was hardly praiseworthy, these comments, viewed in context, were not improper."

Friday, May 02, 2008

Good Decision on Bad Traffic Stop

Today at the Sixth Circuit, a panel consisting of Daughtrey, Gilman, and District Court Judge for the E.D. Mich., Edmunds, reversed the Eastern District of Tennessee's denial of a motion to suppress and vacated a defendant's sentence on a firearms offense in United States v. Blair, Case No. 06-6036. Kudos to Jonathan Moffatt of the Federal Defender Services for the Eastern District of Tennessee for winning a tough suppression issue on appeal, I'm sure it made the wait from when he argued on October 31, 2007 until May 2, 2008 worthwhile. Although, I'm sure his client might disagree.

On the night of March 25, 2004, around 10:35 p.m. Mr. Marcus Blair stopped at a "known drug house in a high-crime drug-trafficking area" in Knoxville, Tennessee. An undercover officer witnessed Blair's car stop at the house and also claimed to have witnessed him engage in a hand-to-hand drug transaction. When Blair's car left the house, the undercover officer radioed to a colleague that a car was leaving the house, but failed to communicate which car or any information regarding the hand-to-hand drug transaction. An officer around the corner, who did not see the defendant's car stop at the suspected drug house nor the hand-to-hand transaction, stopped his car for a pretextual. . . sorry. . . purported "tag-light" violation. The nice thing about this traffic stop was that the police car was equipped with a video-recording device, so that not just the district court, but also the Sixth Circuit could witness the exact timing of what occurred during the traffic stop.

The officer testified that after he received Blair's license he returned to his car and observed that Blair was fidgety and "reaching underneath the seats of his vehicle." The officer conducting the stop testified that he was then informed that the undercover officer had witnessed Blair engage in a hand-to-hand drug transaction. However, the video-tape indicated that the arresting officer did not receive this information for four minutes after he had run the warrant check on Blair's license. At one point in time, Blair tried to exit his car to examine his "tag-light" but was told to remain in the car by the officer. Two minutes after the warrant check had returned negative, the arresting officer asked for permission to search the car. Surprisingly, Blair actually denied permission. The officer then threatened to call a canine unit to the scene if Blair didn't consent. Blair stood his ground, and the canine unit was called, once again approximately four minutes after the warrant check had returned negative. The arresting officer also testified that during the time following the call for back-up and the canine unit, Blair appeared to be nervous.

The Sixth Circuit noted that the video shows that Blair's tag-light was operating, but the arresting officer testified that he still could not read the tag from a distance of ten-feet. Seventeen minutes after the officer ran Blair's license for the purported tag-light violation, the canine unit arrived on the scene. At that time, Blair was told to exit the car so the dog could examine the car, was patted down, and a bag of crack cocaine fell from his pants.

The defendant was indicted on an unrelated federal firearms charge on June 15, 2004. On September 8, 2004, he entered into a plea agreement on that charge that stated that his plea "constitute[d] the full disposition of the known non-tax federal charges within the Eastern District of Tennessee." The PSR was completed on October 28, 2004, and indicated that Blair had been charged in state court on the drugs found on March 25, 2004. On December 6, 2004, Blair was to be sentenced on the gun charge, but that day he was informed that the U.S. would be seeking a federal indictment for the March 25, 2004 arrest. It was then that the defendant filed his Motion to Suppress and a Motion to Dismiss the indictment since it violated the plea agreement to the gun charge.

In reversing the district court's denial of the Motion to Suppress, the Sixth Circuit first noted that it "entertains serious doubt as to Officer Holmes's justification for the stop, primarily because the video evidence shows that the tag-light was fully-0perational." But the Sixth Circuit then found that "even if Officer Holmes had probable cause to stop Blair, the evidence seized as a result of the stop must be suppressed." The Sixth Circuit then dismissed of the district court's finding that the arresting officer had reasonable suspicion to believe that Blair possessed narcotics.

The Sixth Circuit rejected the government's contention that presence in a high-crime neighborhood at 10:30 p.m led to reasonable suspicion. The Sixth Circuit stated "That a given locale is well known for criminal activity will not by itself justify a Terry stop, although it may be taken into account with other factors." The lateness of the stop was another factor relied upon by the district court, but the Sixth Circuit found that 10:30 p.m. is "an hour not late enough to arouse suspicion of criminal activity." The Sixth Circuit also found that the arresting officer did not know of the hand to hand transaction at the time of the stop, and as such, it could not justify a Terry stop of the car.

This Sixth Circuit also rejected the government's contention that the stop was justified based upon the officer's collective knowledge. The Court found that "the officers did not make a collective decision to stop Blair, and thus Officer Munday's knowledge of the hand-to-hand transaction cannot be imputed to Officer Holmes."

Finally, the district court found that the purpose of the "tag-light" stop should have been completed around the time that the officer ran the defendant's license and found no outstanding warrants. The court found that the stop was unnecessarily extended at the time that the officer first asked for consent to search the car because "Officer Holmes had not developed reasonable, articulable suspicion of criminal activity by that point, we [therefore] hold that the remainder of the stop violated the Fourth Amendment." The Sixth Circuit also rejected the officer's fear that Blair might attempt to flee, the unsupported claim that he knew of the hand-to-hand transaction, and Blair's nervousness as justification for the extended stop. And in what to me is a SURPRISING AND VERY USEFUL HOLDING the Sixth stated that "while evasive behavior is a pertinent factor in determining reasonable suspicion, Wardlow, 528 U.S. at 124, Blair's act of reaching under the seats, without more, does not justify a Terry stop." The court found that Blair's prolonged detention violated the Fourth Amendment.

The Sixth then punted on the plea agreement issue finding that its decision on the Motion to Suppress resolved it. Finally, the defendant's guideline range was reduced from concurrent sentences of 120 and 121 months, as driven by the crack charges, to 30 to 37 months on the gun alone.

POST SCRIPT, 6/4/08: On May 23, 2008, the Sixth Circuit granted a motion by the government to extend the time to file a Petition for Rehearing until June 16, 2008.

Tuesday, April 15, 2008

Last week at the 6th, all about the 5th, and a great quote for acquitted conduct

Amendment that is. Last week, the Sixth Circuit published two cases involving whether or not a potential defense witness' invocation of his Fifth Amendment rights prejudiced the defendant's right to present his case at trial. In both cases, the Sixth found that no prejudice occurred.

The Sixth started last Monday, April 7th, with its opinion in United States v. Highgate, No. 06-1447. Mr. Highgate was convicted in the Eastern District of Michigan for various drug and firearms charges, resulting in the district court sentencing him to 360 months imprisonment. Apparently back in 2004, the police were executing a search warrant on a home in Detroit, when Mr. Highgate was seen hiding a firearm and several packages of cocaine and heroin in the backyard. Also upon entry to the home, the police discovered a Mr. LaFrederick Jones inside, "who dropped bags of drugs to the floor upon seeing the officer". At trial, one police officer testified to arresting the defendant in the backyard. In his case in chief, the defendant sought to introduce the testimony of Mr. Jones to the effect that the officer who testified that he arrested Mr. Highgate was not the one who arrested him, but instead that it was a female officer. Mr. Jones had already been convicted and sentenced for his actions on that day. Mr. Highgate called Mr. Jones, but before he could ask any questions, the court stated that it was his understanding that Mr. Jones intended on taking the 5th Amendment. When Mr. Jones stated that was true, the court excused him.

On appeal, Mr. Highgate challenged the district court's dismissal of Mr. Jones without an inquiry into whether Mr. Jones's invocation of his 5th Amendment rights was legitimate. The Sixth Circuit agreed that it was error for a district court to accept a blanket assertion of the 5th Amendment without inquiring into the legitimacy of the witness' fear of prosecution. However, the 6th Circuit found that the district court's error was harmless in this case because they could not conclude that the error affected the outcome of the trial.

Mr. Highgate also raised an issue relating to his 360 month sentence. The district court, upon imposing sentence stated that he felt the Guideline range was too high for Mr. Highgate, but that he felt as if he was required to impose that sentence. The Sixth Circuit was reviewing this sentence under plain error grounds BECAUSE DEFENSE COUNSEL FAILED TO OBJECT TO THE SENTENCE IMPOSED AT THE END OF THE SENTENCING COLLOQUY. However, the Sixth Circuit found that Mr. Highgate could meet the prejudice requirement of plain error because of the district court's plain disgust with the Guideline sentence. The Sixth Circuit stated that "[a]t this stage of the game, sentencing courts frustrate effective appellate review by walking mechanically through the now-advisory Guidelines, lodging their regret all the way." They found that this equalled procedural unreasonableness because the district court treated the Guidelines as mandatory. The Sixth remanded Mr. Highgate for resentencing.

The second interesting opinion on the Fifth Amendment from last week was the case of United States v. Hunt, No. 06-6300/6301. Hunt involved Medicare fraud scheme involving several doctors. Dr. Hunt maintained his innocence and proceeded to trial. At trial, he attempted to introduce an affidavit prepared by a Mr. Noble that was made during the investigation which stated that he believed Dr. Hunt did nothing wrong. He also attempted to call Noble and a Dr. Bartee to testify. Both men refused to testify on 5th Amendment grounds. Apparently the district court in this case did what the district court in Mr. Highgate's case failed to do and inquired into why they were invoking their Fifth Amendment right. Dr. Bartee "refused to testify because of concerns about how his testimony might affect his diversion agreement, which had not been finalized by the time of trial, and Noble refused to testify because of his exposure to potential prosecution in other districts." After the trial and guilty verdict, the district court sentenced the defendant to 5 years probation, even though his Guideline range was 27 to 33 months.

Hunt challenged the dismissal of Noble and Dr. Bartee on the grounds that the government effectively made the witnesses unavailable. The district court found that the government did not make them unavailable because, "the Government did nothing to discourage or inhibit them from testifying."

Hunt also challenged the district court's exclusion of the statements from Noble's affidavit. The Sixth found that the statements were not admissible. They ruled that the statements amounted to hearsay, and that the exception found in Rule 804(b)(1) for the unavailable witness did not apply. They also ruled that the affidavit was not given at another hearing or different proceeding. Finally they stated that the catch-all rule, 807, which allows for the admission of hearsay statements not otherwise covered by the rules if they are trustworthy did not apply because the district court found the affidavit to be untrustworthy. The Sixth also found that the statements were not admissible for impeachment.

Finally, in Hunt, the Sixth Circuit thumbed its nose at Gall's abuse of discretion review, and reversed Hunt's sentence as substantively unreasonable. The Sixth Circuit found that the district court's statement that it had doubts regarding Hunt's intent to engage in criminal acts was improper. In an interesting quote that could be useful for the defense attorney challenging the use of acquitted conduct at sentencing, the Sixth stated that it was error "if the district court did so rely [on its doubts about Hunt's intent], then it is necessary for us to remand under the abuse-of-discretion scope of review. This is because it would be improper for the judge in the sentencing to rely on facts directly inconsistent with those found by the jury beyond a reasonable doubt. Indeed, we have stated repeatedly, albeit outside the sentencing context, that a district court abuses its discretion when it relies on clearly erroneous facts." The Sixth then remanded for resentencing. While I'm confident that the difference in being convicted beyond a reasonable doubt and being acquitted and then having the sentencing court find the facts by a preponderance will end up nullifying the effectiveness of this quote, I feel that is an excellent quote from the Sixth that can be used by defense counsel for any case where acquitted conduct is at issue.


My name is Richard Strong, the rws in the Memphis Federal Defender's office. At a CJA conference our office a few months back, I talked with Sumter Camp about helping out on this blog, and I thought it would be a lot of fun. So of course I forgot completely about it for a couple of months until Sumter helped kick start the process of getting me on board with the blog. Anyway, to make a long story short, I'm looking forward to trying to help reinvigorate this blog.

I wanted to start last week with several interesting decisions from the 6th, but because of a nice public corruption appeal that I was working on, I couldn't find the time. But without further ado....