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.