Friday, May 28, 2010

Substantial-Assistance Departures

In June 2009, we got United States v. Grant, 567 F.3d 776 (6th Cir. 2009), in which Judges Keith and Merritt concluded that once a Rule 35 motion is made the district court can consider all of the 3553(a) factors---not just substantial assistance---in departing downward. Judge Gibbons dissented.

The majority said that "[o]nce the grip of the mandatory minimum sentence is broken, the sentencing judge may consider Sec. 3553(a)."

Unfortunately, on October 16, 2009, the Circuit granted rehearing en banc, vacating the panel decision.

The case was reargued en banc on March 3, 2010. I'll try to keep you posted on the issue.

Wednesday, May 26, 2010

New Format

To help with searching the blog, I'm going to start trying to tag posts with labels. I hope that this tagging will help people find cases and issues when they need them.

Big Rape Shield Victory

Nothing today, but here are yesterday's summaries from our AFPDs.

Rape shield, lessons on variance requests.

In regard to the picture, I couldn't find a free shield, so I used a sword. :)


State Habeas


This opinion is issued upon re-hearing the Court’s earlier decision granting the defendant’s petition for habeas relief. The panel re-heard the case upon request of the State of Michigan, which was then joined by amici from OH, KY, and TN. The Court reached the same conclusion it had previously reached---the application of Michigan’s rape shield law ON THE FACTS OF THIS CASE violated the Defendant’s due process rights and the issuance of the writ was upheld. There is a vigorous concurrence that directly answers the petitioners’ "sky is falling" rhetoric. There is an equally vigorous dissent.



Direct Appeal


In this case, the Circuit Court found that the defendant’s failure to object to the jury instructions challenged on appeal required "plain error" review. The essence of the challenge was that acts related to the conspiracy that took place outside of the statute of limitations period may have been the basis of the jury verdict and therefore the jury should have been instructed that it had to find that the defendant committed the offense in the period within the statute-of-limitations period. The Court found no error, plain or otherwise.

The second appellate issue was the argument that the trial court had failed to recognize its discretion to disagree on policy grounds with the Career Offender guideline. This was a particularly hard sell given that the defendant received a sentence of 144 months, just two years above the mandatory minimum of ten, on a guideline range of 292 months to 365 months. The fact of the substantial variance alone was sufficient to indicate that the trial court knew it had such discretion, but was limited by the mandatory minimum as well.



Direct Appeal


The Circuit Court ruled that under recent 6th Circuit precedent Fleeing & Eluding 3rd Degree has been conclusively found to be a crime of violence. It was clear the panel had no intention of revisiting the issue in this case.



State Habeas


This state habeas case turns on the factual and procedural history specific to the petitioner’s claim. Having won in the District Court, the petitioner lost in the Circuit Court because, even though subsequent to the prisoner’s case having been heard in the state courts on the Blakely issue the OH courts applied Blakely to OH’s sentencing regime, at the time he presented his claim to the state court, Blakely had been ruled not applicable to OH’s sentencing regime. Therefore appellate counsel was not ineffective in failing to raise Blakely because it was a loser issue at the time.



Direct Appeal


The defendant’s sentence of 93 months (60 months of which was a 924 (c) mandatory minimum) on a guideline range of 37 to 46 months (that credited the defendant with 3 months he had spent in state custody) was determined to be procedurally and substantively reasonable, particularly in light of the defendant’s request for a low-end guideline sentence and no request for a departure or variance.

A lesson seems to be: don't ask for a low-end guideline sentence if there is any chance for more. Ask for a variance when there is any basis for it.

Monday, May 24, 2010

Great S Ct News!

U.S. v. O’Brien and Burgess, No. 08--1569 (May 24, 2010):

Unanimous decision (with concurrences). Opinion by Justice Kennedy. In a 924(c) prosecution, the issue of whether a firearm is a machine gun (so the defendant is subject to a 30-year mandatory minimum sentence) is an element of the offense that must be charged in the indictment and proved to a jury beyond a reasonable doubt.

Graham v. Florida, No. 08--7412 (May 17, 2010):

Life without parole for juvenile offense other than homicide is cruel and unusual punishment.

Friday, May 21, 2010

May 18: No Luck Fishing for a Better Sentence


Appeal by the Government of grant of a new-trial motion


In a case that the Circuit Court referred to as "ineffective assistance of counsel light," the District Court’s grant of the new-trial motion was reversed and the conviction affirmed. The Circuit Court chose not to deal with the question of ineffective assistance light and decided the issue on strict Strickland grounds. It decided to leave the question of "ineffectiveness light" to another day.

Without going through every claimed item of ineffectiveness, it will suffice to say that trial counsel’s actions were found justified by the Circuit Court. The defendant’s arguments were undercut by the fact that neither trial counsel nor the defendant testified at the hearing. One suspects that the issue of ineffectiveness, light or otherwise, will be back another day. The invitation seems open.



Direct Appeal

Unpublished (very short opinion)

The Circuit Court found that the Defendant knowingly pleaded guilty to the drug charges in return for a promise by the prosecution to file a motion for the sentence to be below the 20-year mandatory minimum under 3553(e)---substantial assistance. The defendant’s 17-year sentence was given as a result of the motion. The defendant was found to have waived any argument that the sentence was unreasonable under the 3553(a) factors given the mandatory minimum.

The Circuit Court also found that the Defendant waived his right to contest the issue that a pardoned conviction could not be used to subject him to an enhanced penalty under § 841(b)(1)(A).

Summaries: May 13 to 17 and Medicaid Fraud, Evidentiary Issues

Our AFPDs offer these summaries for May 13 to 17.


Direct Appeal


Defendant appealed the denial of his motion to suppress and the sentence he received. The Court affirmed the suppression decision and denied any sentencing appeal as having been waived by the plea agreement.

The Circuit Court found the affidavit for the warrant weak but sufficient on the issue of probable cause. The majority opinion spends much time refuting the contrary conclusion of the dissent.

There is an interesting sidebar flowing throughout the opinion about the Defendant’s failure to ask for a Frank’s hearing but continuously arguing that Frank’s should apply. One is left with some impression that had there been a request for a remand on the Frank’s issue it might have been granted.

Court finally relies on the Leon ‘good faith’ exception in any event.

As to the sentencing appeal, the Court found that the Defendant had waived his right to appeal the denial of safety valve treatment by the Court. (The Court seems to have found the appellant’s brief wanting on the issue of waiver.)

As noted, there was a very vigorous dissent on the probable-cause issue and the good-faith-exception issue.



State Habeas


Petitioner–appellant was convicted in Ohio of aggravated murder and aggravated robbery and sentenced to death. Petitioner appealed the district court’s denial of his petition for a writ of habeas corpus, challenging the state court’s failure to conduct a competency hearing, trial counsel’s effectiveness in developing mitigation evidence, and the trial panel’s consideration of mitigation proof. Circuit Court affirmed the district court’s decision and dismissed the petition.


Petitioner’s counsel rendered ineffective assistance by failing to adequately investigate and prepare mitigating evidence for the penalty phase of trial. Dissent would vacate the sentence and remand.

Because counsel’s investigation into mitigating evidence was deficient and there was a reasonable probability that, absent the insufficient investigation, the sentencer would have concluded that Petitioner should not have been sentenced to death, dissent would vacate the sentence and remand. But dissent would leave Petitioner’s conviction undisturbed.

Case is relatively fact specific.



Direct Appeal


Defendant was convicted by a jury of possession with the intent to distribute a quantity of cocaine, and with the possession of firearms in furtherance of a drug trafficking offense. In order to have counsel appointed, Defendant filed a financial affidavit.

On redirect examination, government moved to admit this financial affidavit to provide some evidence of guilt. The district court admitted the affidavit. Circuit Court concluded that the district court erred in admitting the affidavit, but the error was not plain. So, the Court affirmed the convictions.

Plain error was the problem. Failure to specifically object to the admission of the financial affidavit allowed the Court to affirm the conviction despite the erroneous evidentiary decision below.

Court found that the district court did not make a ruling because defense counsel failed to object. Plain error applied. Defendant argued the failure to object could be excused. Court found, however, that, while defense counsel encountered a difficult situation, the situation did not excuse the failure to object.

In light of the other evidence, Court concluded the error did not affect the outcome of the district court proceedings.



State Habeas (two cases were consolidated)


In first case, number 05--6925, petitioner filed a motion for equitable relief, contending that the prosecution engaged in misconduct by not revealing to defense that it had granted a key witness, Ronnie McCoy, a deal in exchange for his testimony. Petitioner argued that by allowing McCoy to testify that he had not received special consideration the prosecution had knowingly offered perjured testimony at trial and perpetrated fraud on the district court during the subsequent habeas corpus proceedings (government submitted affidavits from McCoy and the prosecutor denying the existence of a deal).

In the second case, number 06--6330, petitioner filed a motion, alleging that the prosecutor improperly vouched for McCoy during closing argument.

The Circuit Court denied the petitions filed subsequent to his original habeas case (which he had lost) as barred procedurally. This conclusion came despite the fact that it appears there was at least arguably perjured testimony offered by the prosecution and perhaps a fraud upon the court.

The dissent vigorously explained that, in essence, the majority ignored the facts of the situation, ignoring seemingly compelling circumstantial evidence of perjury. Dissent felt petitioner should at least receive an evidentiary hearing on the issue.

To the dissent, remand for an evidentiary hearing would be preferable. Dissent felt majority's position made it so that, if the parties to an undisclosed deal continue to assert that no deal exists, it would be impossible for a petitioner even to get the chance to test their assertions by cross-examination. Dissent asserted that a rule that declares that a prosecutor may hide (and a defendant must seek) is not tenable in a system constitutionally bound to accord defendants due process. Without a chance to cross-examine McCoy, the prosecutor, and possibly other witnesses, the petitioner could never prove the existence of a deal.

To the dissent, even though there may have been a deal between McCoy and the prosecutor, as was likely, there was no quantum of evidence (circumstantial or otherwise) that could convince the majority that an evidentiary hearing was warranted. But because the record before the Court indicated a very real possibility that McCoy and the prosecution had reached a mutual understanding that McCoy would not be prosecuted, the dissent felt an evidentiary hearing should have been held to determine whether the affidavits submitted in the initial habeas proceeding constituted a fraud on the court.

Otherwise, the Court could not be assured that due process had been afforded, that justice was done, and that the Court had avoided the consequences of a mistake---especially in the context of a death penalty case. Dissent noted that "death is special."



Direct Appeal


Defendant raised four issues. First, that there was insufficient evidence for the jury to convict her of falsely pretending to be a government agent while demanding money. Second, that evidence introduced at trial established two conspiracies, which created a variance and resulted in prejudice to her. Third, that there was insufficient evidence for the jury to convict her of conspiring to defraud the United States. Finally, that the district court erred when it denied her motion for a mistrial.

Opinion is lengthy. The Circuit Court affirmed the convictions. Evidence presented at trial was sufficient to support both of Defendant’s convictions. Defendant did not established that the evidence presented at trial could reasonably be construed only as supporting a finding of multiple conspiracies, so Defendant did not show that the evidence created a variance. Neither did Defendant establish any error in the admission of the prior convictions of one of her witnesses or the district court’s decision to deny her motion for a mistrial.



Direct Appeal


Case involved Medicaid fraud on a relatively large scale. The Defendant went to trial and lost on all counts. On appeal, she raised numerous procedural and evidentiary arguments against the District Court’s rulings. In a lengthy opinion describing what appears to be more than sufficient evidence, the Circuit Court ruled against the defendant on every issue, including that a low end, within-guidelines sentence was reasonable. The convictions and sentence of 97 months were affirmed. 

Tuesday, May 18, 2010

Civil Commitment Statute OK Under N and P Clause

The Supreme Court ruled in United States v. Comstock, No. 08--1224 (May 17, 2010), yesterday.

Justice Breyer delivered the opinion of the Court, in which Chief Justice Roberts and Justices Stevens, Ginsburg, and Sotomayor joined. Justices Kennedy and Alito concurred. Justices Thomas and Scalia dissented.

A federal civil-commitment statute authorizes DOJ to detain mentally ill, "sexually dangerous" federal prisoners beyond the prisoners' release dates: 18 U. S. C. § 4248.

Issue: whether the federal government is authorized under Article I of the Constitution to enact such a federal civil-commitment regime or whether its doing so falls beyond the scope of a government of enumerated powers.

Conclusion: the statute is constitutional.


Five considerations:

1) the breadth of the Necessary and Proper Clause,

2) the long history of federal involvement in this arena,

3) the reasons behind the statute’s enactment in light of the government’s custodial interest in safeguarding the public from dangers posed by individuals in federal custody,

4) the statute’s accommodation of state interests, and

5) the statute’s narrow scope.

"Taken together, these considerations lead us to conclude that the statute is a 'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. The Constitution consequently authorizes Congress to enact the statute."

Majority noted that it does did not decide any claims regarding the statute and equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution. Respondents remain free to pursue such claims on remand.

Justice Kennedy concurred in the judgment and wrote separately for two purposes: 1) to withhold assent from certain statements and propositions of the Court’s opinion; 2) to caution that the Constitution does require the invalidation of congressional attempts to extend federal powers in some instances.

Justice Alito likewise concurred in the judgment. He was concerned about the breadth of the Court’s language in the opinion and the ambiguity of the standard that the Court applied. He was, however, persuaded, on narrow grounds, that the statute is "necessary and proper" for Congress to enact.

Justice Thomas, with whom Justice Scalia joined (except for one part of the opinion), dissented.

He concluded that the Necessary and Proper Clause empowers Congress to enact only those laws that carry into execution at least one of the federal powers enumerated in the Constitution. He found that § 4248 executes no enumerated power. He pointed out that the Necessary and Proper Clause does not provide Congress with authority to enact any law simply because it furthers other laws Congress has enacted. The Clause requires a showing that every federal statute carries into execution at least one of the federal government’s enumerated powers.

He also noted that the statute’s definition of "sexually dangerous person" has no element relating to the subject’s offense. It does not require federal courts to find any connection between the reasons supporting civil commitment and the enumerated power with which that person’s criminal conduct interfered. So § 4248 allows a court to civilly commit a person without finding that he/she was ever charged with or convicted of a federal crime involving sexual violence. The possibility is not hypothetical. The government conceded at oral argument that almost 20% of the individuals against whom § 4248 proceedings have been brought fit this description.

The dissent also pointed out that the statute the Court upheld in Greenwood v. United States, 350 U. S. 366 (1956), is in contrast. That statute authorized the federal government to exercise civil custody over federal defendants declared mentally unfit to stand trial only until the accused was found mentally competent to stand trial or until the pending charges against them were disposed of according to law. That statute’s end reasonably could be interpreted as preserving the government’s power to enforce a criminal law against a defendant. Section 4248, in contrast, authorizes federal detention of a person even after the government loses the authority to prosecute him/her federally.

Monday, May 17, 2010

More Catch Up: May 12

Here are our AFPDs' summaries from May 12. Sorry again for the lack of posting. You'll also be hearing from me soon on recent S Ct decisions. Things are moving. . . .
(This picture does not relate to these cases, but I thought it was cute!)


Direct appeal of partial denial of motion to return property


Pro se case regarding the return of property seized during a search but not used as evidence at the trial and not contraband.



Direct appeal of a supervised release violation


Circuit Court agreed with the factual findings, revocation of SR, and the sentence of ten months, finding the appeal "entirely without merit." Violation involved not completing treatment.



Direct appeal of sentence of mandatory minimum of 20 years.


Defendant had pleaded no contest to the charge of conspiring to possess and distribute 1,000 kilograms or more of marijuana. Before defendant entered his plea, government filed a notice pursuant to 21 U.S.C. § 851, seeking an enhanced sentence due to defendant’s prior conviction for a felony drug offense. Notice had the effect of increasing the mandatory minimum sentence that defendant faced (from 10 years of imprisonment to 20 years). Defendant still entered plea without a plea agreement. At the conclusion of sentencing hearing, district court imposed the 20-year mandatory minimum sentence.

Defendant then sought to invalidate his conviction and sentence, challenging the propriety of the § 851 notice, disputing the quantity of drugs attributed to him, and objecting to the finding that he had a supervisory role in the conspiracy. Appellate Court affirmed.

Defendant's arguments: whether the § 851 notice was defective for failing to refer specifically to the superseding indictment; whether the government was barred from filing a § 851 notice because defendant pleaded no contest; whether the notice was void because the trial court failed to ask defendant if he affirmed or denied his previous conviction; whether § 851 represents an unconstitutional delegation of power to the executive branch; whether § 851 interferes with the judiciary’s power to issue sentences; whether § 851 interferes with the grand jury’s power to indict; whether § 851 violates a criminal defendant’s right to a jury trial; and whether § 851 undermines the Sentencing Guidelines. Defendant also argued that the district court erred by enhancing his offense level by determining that he was responsible for conspiring to distribute more than 1,000 kilograms of marijuana and that he had a supervisory role in the conspiracy.

Circuit Court engaged in a full discussion of defendant’s 8 separate points contesting the 851 notice of enhancement under the drug law. Good review of the cases regarding the sufficiency of the notice and the specificity required or not required as the case may be.



Direct appeal of sentence


Defendant appealed the sentence imposed by the district court following jury verdict on the lesser offense of possession of cocaine base. Appellate Court affirmed.

Defendant challenged whether "crack" means "cocaine base" and lost.

There is a discussion of factual necessities for enhancement for gun possession in connection with offense under 2D1.1. (This case is a bit of a contrast to the case two weeks ago finding enhancement inapplicable. See Woods case under April 29.)

Client sought acceptance-of-responsibility reduction even though he had a trial. Appellate Court rejected argument.

I'm a Bit Behind---May 3 to 11

Sorry. I got a little behind in my posts, but here are our AFPDs' recent summaries.


Direct appeal of grant of motion to suppress


Appeal from an order granting defendant’s motion to suppress evidence, which had been seized from two medical offices. Following searches, grand jury indicted the defendant, a pediatric otolaryngologist, on 110 counts of health care fraud. Superceding indictment charged him with devising and executing a scheme to defraud and obtain money from health-care benefit programs.

The defendant contended in the district court and argued on appeal that: 1) the affidavit for the search warrant did not establish probable cause; 2) the warrant did not meet the particularization requirement of the Fourth Amendment; 3) the government’s claim of inevitable discovery had no merit; and 4) suppression was appropriate. The district judge had agreed with the defendant and granted the defendant’s motion to suppress, ordering exclusion of all evidence seized in the challenged searches.

Court of Appeals affirmed in part and vacated in part.

Vacated the district court’s suppression of defendant’s patient files with instructions for the district court to determine which list (if any) came before the issuing magistrate judge, and to suppress only patient files seized beyond the scope of that list.

Appellate Court concluded that suppression of the non-patient file evidence was proper. District court had done so. The Appellate Court noted that it has held that a failure to limit broad descriptive terms by relevant dates, if/when such dates are available to authorities, will render a warrant overbroad. Here, rather than specify exactly which documents authorities sought, the government chose to use descriptions of items to be seized that did not refer to specific patients, specific transactions, or a specific time frame.

Court affirmed the suppression of the non-patient file evidence.

Also concluded that the government had not met its burden of showing that, despite the partial invalidity of the warrants, retrieval of the unconstitutionally seized set of patient files and records was inevitable.

Finally, the district court found that the warrants lacked probable cause to believe that the patients’ medical records would be found in the defendant’s medical offices. Court reversed this finding.



Direct appeal of prisoner civil-rights case


Reversed dismissal of prisoner rights case, finding possible 8th Amendment violation.



Appeal of prisoner rights case


Petitioner Avery Clemmons appealed the district court’s denial of his motion for permission to file a motion pursuant to Rule 36. The district court had previously prohibited further filings by Clemmons without prior approval of the court. Appellate court affirmed.



Direct appeal of prisoner civil-rights case


Prisoner civil-rights action filed pursuant to 42 U.S.C. § 1983. Moore was a prisoner at the Riverside Correctional Facility in Ionia, Michigan. He alleged that, on July 2, 2007, a nurse and two correction officers informed a fellow prisoner that Moore was HIV positive. Moore also alleged that an inspector asked another prisoner if that prisoner knew that Moore had a sexually transmitted disease. On July 6, Moore was transferred to Ionia Maximum Security Correctional Facility because Riverside was closing.

Court joined other circuits, finding that, as a matter of law, inmates have a Fourteenth Amendment privacy interest in guarding against disclosure of sensitive medical information from other inmates subject to legitimate penological interests. District court erred in finding that Moore’s privacy claims failed as a matter of law. Open question whether Moore’s allegations have factual support.

Court affirmed district court’s judgment to the extent that the judgment dismissed Moore’s privacy claims regarding disclosure of medical information to correctional staff. Court, however, vacated district court’s dismissal of Moore’s state law claims and remanded with instructions to consider whether to allow amendment under the standards of Federal Rule of Civil Procedure 15. Also reversed for further proceedings on Moore’s claims regarding disclosure of medical information to other inmates.

There is a dissenting opinion from Judge Kethledge.

6th Cir. Judicial Conference Recap

The 6th Cir Conference (May 4 to 7) was excellent. The speakers were fantastic and included too many leading jurists to list. It was a fantastic event and I look forward to the next.
One break-out session I must mention was the session on revisiting old convictions in light of new technology. This session focused on forensic science: advances in technology, flaws in the "scientific" methods used, Daubert challenges, and related topics. With advances in DNA technology, innocent people are getting relief. These DNA cases bring to the forefront a number of problems in the criminal justice system. Having just worked on a Daubert challenge (with a somewhat successful result), I think such challenges offer an opportunity to address some of these problems. Sure, these challenges are not easy to make, but I think the potential benefits are great.
The session was a moving reminder of why we do this job.