Thursday, July 30, 2009

Looking For the Substantively Reasonable Number

In United States v. Harris, 07-4175 (6th Cir. July 27, 2009), Judges Gibbons, McKeague, and Shadur, vacated Harris’s sentence and remanded for resentencing. Harris had pled guilty to two counts of possessing child pornography, one count of receiving and distributing child pornography, and one count of knowingly possessing a computer with child pornography on it. The advisory Guidelines range was 210-262 months of imprisonment. The PSR, however, suggested a downward variance would achieve the statutory purposes of sentencing.

In sentencing Harris, the district court varied downward and imposed a sentence of 84 months of imprisonment, a term which more than encompassed the 60-month statutory, mandatory minimum sentence. The district court also imposed a supervised release term of 3 years. In explaining the downward variance, the district court addressed the 18 U.S.C. § 3553 factors and stated:

Now it's, I think in light of all of these factors, I think a sentence of 84 months would be an appropriate sentence in this case. Now, I think it must be more than the mandatory minimum. I think the defendant has to feel the seriousness of this matter, which is very serious. And I think that given his history, lack of other criminal involvement before, I think this sentence sends a very strong message to him that something that he thought maybe wasn't that serious, sitting there at his computer looking at some images, not hurting anybody, that it hurts and that he'll be away from his family, away from his job, not being able to contribute at all. So he's gone from living a life of comfort and caring, to one where he's locked up, locked up for seven years or 84 months.

I think that wouldn't be enough in many cases, but I think that it is enough in this defendant's case. When I consider the supervised release period that I am going to impose on him, when I consider the structures that are going to be on him as a result of being designated as a person who has been convicted of child pornography, and also given the restrictions that are going to be put on him going forward, I think that those would serve to protect the public, not just to put him away for 84 months, but to brand him in a way which he could be identified, and also the public will be protected because he will not be free to move about as other persons move about in society without significant restrictions. I think that would protect the public here, and I think that the information here suggests that there is less to protect the public from than there might be in some other cases, although, clearly, it needs to be protected.

So I think that when you consider all of those factors it does reflect the seriousness of the offense, it does serve as an adequate deterrent. I think it would protect the public. And then I'm going to require him to have some treatment, and again that's something that will be part of his supervised release, which will require him to deal with the issues, mental health issues, or possible mental health issues, growing out of this problem. . . .

Though the district court considered the § 3553 factors and the statutory purposes of sentencing, the panel vacated Harris's sentence, stating:

The bottom line is that the factors the district court relied on, as articulated in the record, do not appear to justify a variance of this size. This is not to say that the variance itself is per se unreasonable – only that the district court must provide a sufficient justification for such a major variance. The district court in this case did not do so. Instead, the district court placed an unreasonable amount of weight on Harris’s character. It did so despite Harris’s lack of distinguishing characteristics and despite the seriousness of the offense. Accordingly, we find the variance here substantively unreasonable based on the current record.

Clearly, the panel did not state a variance was impermissible. In fact, the panel suggested a sentence below the advisory Guidelines range could be reasonable. It is unclear from the opinion, however, what magical combination of explanation and variance is necessary to avoid having a sentence be deemed substantively unreasonable.

The Sixth Circuit has affirmed below-the-Guidelines sentences in seemingly similar child pornography cases. For example, in United States v. Weller, 2009 WL 1349779 (6th Cir. (Tenn.) May 13, 2009), the Circuit recently affirmed a sentence of 120 months’ imprisonment when the advisory Guidelines range was 324 to 405 months' imprisonment. Weller had pled guilty to eight child pornography-related offenses. The Harris case thus only adds to the difficulty of determining "how much" is enough. "How much" explanation? "How much" variance? "How much" time?

How can we defense attorneys help to answer the "how much" questions? The most obvious suggestion is to file sentencing memorandums that address all the § 3553 factors that pertain to our cases – which did not appear to have occurred in the Harris case and which may not have changed the end result even if one had been filed. However, in my humble opinion, if we hope to have a sustainable record, we need to contribute to that record. Before walking into a sentencing hearing, we should have created a written roadmap for each applicable sentencing factor that supports a departure or variance, complete with signposts, rest areas, and scenic views, so, maybe, we can more effectively help shape the determination of "how much" is enough.

Friday, July 17, 2009

Computer Searches, The Fourth Amendment, and Sarah Palin

While I know this is not directly related to Sixth Circuit actions in cases, I thought it might be of interest to criminal defense practitioners in addressing searches of computers.

I am not sure if this story has made national news, but it is turning into an interesting case down here in Tennessee. Over in Knoxville, David Kernell, the 21 year old son of Memphis democratic state representative Mike Kernell, has been charged with illegally accessing Gov. Sarah Palin's Yahoo email account during last year's presidential campaign. Apparently, he is alleged to have gathered together readily available personal information of Gov. Palin, and guessed at what her password was. According to this article in today's Memphis Commercial Appeal newspaper, his attorneys are seeking to suppress any evidence discovered as a result of the search of Mr. Kernell's computer. According to the news report, "the attorneys contend federal authorities went beyond the authority granted in a search warrant and went instead on an illegal fishing expedition inside the laptop." According to another newspaper account in the Knoxville News-Sentinel, the defendant is also now seeking to subpoena Palin's records regarding her use of the Yahoo account for government purposes and other documents relating to the private nature of her email account, but that is not what is interesting to me. The challenge to the breadth of the government's search of the defendant's computer presents an issue that has yet to be adequately addressed by most courts, and could prove to be fruitful ground for defense practitioners seeking to suppress evidence obtained from a defendant's computer.

What makes these newspaper reports interesting to me, beyond the extraordinary facts, is that it reminded me of an article in last month's cyber-crime issue of Champion magazine from NACDL entitled "Arguing for Suppression of 'Hash' Evidence," by Marcia Hoffman of the Electronic Frontier Foundation. While I doubt that this case depends upon the use of 'hash' evidence given the nature of the evidence being sought, the questions of the breadth and scope of officers' searches of computers, even under a search warrant, is one that will soon have to be addressed by courts. As Hoffman explains: "Because Fourth Amendment jurisprudence has evolved around traditional notions of physical property and common law trespass, its application to new technologies has been an ongoing challenge for the courts. It is well-settled that people generally have a reasonable expectation of privacy in their personal computers, but forensic examinations--a key component of many police investigations--raise some difficult questions."

Along those lines, another article in the Georgia Bar Journal this past February by Edward Garland and Samuel Williams (the attorneys that fashioned the sentencing alternatives for rapper T.I. that recently made news) entitled "The Fourth Amendment and Computers: Are computers just another container or are new rules required to reflect new technologies," addressed the many issues presented by officers broad searches of computers. Garland and Williams argue in their article that "[a]lthough there is considerable debate about whether traditional Fourth Amendment jurisprudence can adequately address any issue that arises in the context of a computer search, or whether an entirely new set of rules is needed, the fact of the matter is that the computer presents new and intriguing problems in the area of the Fourth Amendment, regardless of whether the courts ultimately rely on adapting old rules to solve the problems, or adopting new rules to reflect the technologies." Their article identifies a myriad of issues relating to computer searches and proposes that adapting old rules will be insufficient to address the problems presented by broad computer searches. They contend that the promulgation of new rules will be necessary to prevent the circumvention of the 4th Amendment's privacy protections in persons effects found on hard drives. In addressing the Georgia courts' view of a computer as simply another briefcase, they state, "[t]his simplistic view fails to recognize the scope of the searches that are being undertaken; fails to consider the amount of information found in computers that has nothing to do with legitimate law enforcement concerns and results in the violation of the particularity requirement of the Fourth Amendment and the requirement that searches and seizures be reasonable."

I believe that the Kernell case might present an excellent situation for the Sixth Circuit to address the parameters of the 4th Amendment in the digital age, and the district court's actions in this case bears watching. While Garland and Williams identify other issues presented by computer searches, I believe the particularity requirement of the 4th Amendment is going to be the key to evaluating search warrants seeking to seize computers from a defendant. When you seize most people's computers these days, you aren't just seizing their storage device for evidence of crimes or illicit contraband, but also, their checkbooks, their entertainment systems, their writings, "their papers and effects" if you will. Given the myriad of uses computers are involved in, are warrants that describe the item to be seized simply as a "computer" enough to fulfill the particularity requirement, or will agents need to identify the specific type of file that they are searching for in the computer? If agents go in searching for one thing, but do a little nosing around, and find evidence of another crime, is that 'plain-view'? These are just two of many questions that have yet to be answered regarding computer searches.

Based on an admittedly cursory review of the caselaw this morning, I could find no cases where the Sixth Circuit has directly addressed the particularity requirement in regards to searches of computers. Maybe Mr. Kernell's case will give them the opportunity to do so, judging from the nature of his motion to suppress. Regardless, I believe this is an issue that is going to be addressed by higher courts in the immediate future, and the defense practitioner needs to take a second look at warrants that simply identify a 'computer' as the object of the search.

Monday, July 13, 2009

Plea Agreements and Mandatory Minimums


The panel of Chief Judge Boggs and Judges Moore, and Sutton issued an opinion in United States v. Jones, No. 08–1352 (6th Cir. July 7, 2009), considering mandatory minimums and construing plea agreements. The panel made clear a few interesting points, among them:

* A plea agreement will always be construed against the government if there is any ambiguity.

* Mandatory minimum sentences are not likely to be found cruel and unusual—a life sentence for a first-time offender has been upheld.

The defendant received a fifteen-year sentence for crack cocaine and a firearm in furtherance of the dugs. The defendant had waived his right to appeal a sentence at or below the maximum guideline range as determined by the district court. The issue was: what is the guideline range? Was it the mandatory minimum or the range calculated under the Guidelines? The Court looked to U.S.S.G. Section 5G1.1(b), which says that a mandatory minimum dictated by statute becomes the guideline range when it is higher than the range calculated under the Guidelines. The Court concluded there was ambiguity as to what the "range" was and gave the defendant the benefit of the doubt. The Court cited plea agreements from other circuits that made clear what was intended by "range."

It is fairly clear from Chief Judge Boggs’s concurrence/dissent that the defendant was aware that he had to receive the mandatory minimum sentence.

In terms of the substance of the sentence, the Court rejected the defendant’s Eight Amendment challenge to the ten-year mandatory minimum sentence for possessing with the intent to distribute more than 50 grams of crack cocaine. The Court concluded that the Eight Amendment is only offended when there is an extreme disparity between the crime and the punishment—the narrow proportionality principle.

Thursday, July 09, 2009

Published Clarification on Sec. 3582(c)(2)

On June 30, 2009, the panel of Judges Moore, Gilman, and Phillips (E.D. Tenn.) decided United States v. Johnson and Moss, Nos. 08–3925, 08–3926 (6th Cir. June 30, 2009). The published opinion considers the § 3582(c)(2) motions of two defendants who were indicted for crack and powder cocaine offenses, but who were ultimately sentenced based only on the powder. The court makes clear that a sentence must be based on crack cocaine if a defendant is going to be eligible for relief under the retroactive crack amendments. A conviction that involved crack is insufficient. To be eligible for relief, a defendant must be serving a sentence on which the amount of crack cocaine had an impact. Otherwise, a district court is not authorized to reduce the sentence under § 3582(c)(2).