Tuesday, August 31, 2010

The day the Fourth Amendment Died

As Don McLean might say: "But february made me shiver With every paper I’d deliver.Bad news on the doorstep; I couldn’t take one more step. I can’t remember if I cried When I read about the decision inside, But something touched me deep inside The day the Fourth Amendment died."

In a published decision issued todayhttp://www.ca6.uscourts.gov/opinions.pdf/10a0276p-06.pdf, the Sixth Circuit provided two important rulings in its Fourth Amendment jurisprudence. First, the Court determined that where a state court lacked jurisdiction, under state law, to issue a warrant, the warrant violates the Fourth Amendment. The magistrate in this case had issued a warrant for property located in one county, but the magistrate was from another county. Under Tennessee law, the magistrate only had jurisdiction in his sitting county. The Court therefore ruled "In this case, Judge Faris’ authority to issue warrants stems exclusively from Tennessee law, but that same source of law provides that Judge Faris had no authority to issue a warrant for a search of Defendant’s home. The search therefore violated Defendant’s Fourth Amendment rights."

Unfortunately, the Court then determined that, even though there was a clear Fourth Amendment violation, there might not be a remedy. The Court, citing newer Supreme Court precedent, found that it needed to re-examine its good faith exception jurisprudence. The Court noted that, post Herring v. United States, 129 S.Ct. 695 (2009), the Court could not longer find that a presumption of suppression, based upon a Fourth Amendment violation, applied. Rather, a court must now balance the factors of (1) the benefits of deterrence against (2) the cost of excluding the evidence. The Court therefore remanded for the district court to consider this balancing test, but noted that "Arguably, the issuing magistrate’s lack of authority has no impact on police misconduct, if the officers mistakenly, but inadvertently, presented the warrant to an
incorrect magistrate.

The case thus presents a serious limitation on Fourth Amendment protections. In addition (and exclusive of) showing a Fourth Amendment violation, the defense must bear the burden of proving how the deterrent effect of suppressing the evidence would outweigh the cost of its exclusion in a particular case. Of course, the cost is presumably always going to be high; otherwise, why would exclusion be sought? Therefore, this case seems to present a significant hurdle for a successful Fourth Amendment challenge.

Friday, August 27, 2010

No Title to Capture Truly Deplorable and Heinous Facts

Trying to catch up with our AFPDs' summaries. This case is truly horrible. Defendants were guards at a detention center. Interesting discussion of plain error, Apprendi, and other issues.

WESLEY LANHAM (08-6504; 09-5094);

SHAWN FREEMAN (08-6506; 09-5095),

Direct Appeal



Defendant were convicted of violating an inmate’s civil rights in violation of 18 U.S.C. §§ 241 and 242, and of making a false entry in violation of 18 U.S.C. § 1519. They were prison jailers when an inmate (J.S.) was raped in jail. Defendants and their supervisor decided to "scare" J.S. after the latter was arrested for a traffic violation. They placed him in a general population jail cell and incited atrocities. Defendants appealed their convictions and sentences, arguing that there was insufficient evidence to support their convictions, and Defendant Freeman claimed that he was entitled to a downward sentencing departure. The government appealed the district court’s application of the 2006 Sentencing Guidelines to the defendants’ sentences and the court's refusal to apply a sentencing enhancement to Defendant Lanham.

The Court of Appeals affirmed.

The Court sets of the facts of the offense in painful detail in the first 7 pages of the opinion. The conduct of these defendants was egregious.

The Circuit Court ruled that, although the trial court had abused its discretion in failing to exclude two jurors for cause, the error was harmless, as the jurors were struck peremptorily. The government’s striking of a third juror for cause was correctly allowed by the trial court. The panel was constitutionally acceptable.

The trial court’s limitation on the scope of cross-examination was reviewed for plain error where there was no preserved objection. Since there is no 6th Circuit case on point, the Court of Appeals looked to other circuits and found a split of authority. In that case, plain error cannot be found.

"Where there are conflicting authorities, the district court could not have committed plain error." Court found that, at a minimum, a court of appeals cannot correct an error unless that error is clear under current law. Because the law on the issue was not clear, the district court did not commit plain error.

There was sufficient evidence as to each defendant to convict each of violating the inmate’s civil rights. As to filing false reports, the wilful omission of facts is sufficient falsification to be a crime.

The enhancement under the statute was properly submitted to the jury. The defendants were charged under 18 U.S.C. § 241 for conspiring to violate J.S.’s civil rights. The indictment charged that the acts in furtherance of the conspiracy included aggravated sexual abuse; the statute establishes a ten year maximum sentence for those convicted under the statute. But it includes an increased penalty of "any term of years or for life" if the conspiracy included an act of aggravated sexual abuse.

Because the question of whether an act of sexual abuse occurred is a factual issue that increases the penalty for a violation of § 241 beyond the otherwise prescribed statutory maximum, the question had to be submitted to a jury and proved beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The district court properly submitted the question of whether aggravated sexual abuse occurred to the jury, and adopted the definition of aggravated sexual abuse found in 18 U.S.C. § 2241 (Court cites 1998 version).

The sentence reduction for minimal was properly denied to Defendant Freeman.

The trial court’s use of the guidelines in effect at the time of the crimes was appropriate in the face of appeal by the government. Ex Post Facto concerns would have been implicated by use of a later version of the advisory guidelines and the trial court correctly recognized those concerns.

The trial court’s decision not to apply a leadership role to Defendant Lanham’s guideline scoring was appropriate and supported by the record.

The court sentenced Lanham to 180 months and Freeman to 168 months in prison.

The Old Corpus Delicti Rule

Thanks goes to our AFPD summarizers for their summaries. There have been a number of cases, and I'm not keeping up, but I'll try to get more up here!


Direct Appeal



Jury convicted defendant of being a felon in possession of a firearm. Defendant moved for a post-verdict judgment of acquittal, arguing that the only evidence presented against him at trial (his confession) did not support the jury’s verdict. Trial court invoked the "corroboration rule" and acquitted him. Government appealed. Finding that sufficient independent evidence established the trustworthiness of the defendant's statements, the Court of Appeals reversed.

The case involved what in Michigan is called the corpus delicti rule, and the Circuit Court found sufficient evidence that the crime of stealing a gun and possessing it had occurred. The rule is a bit different than the Michigan rule, but relatively similar.

The Court found that "[t]oday’s corroboration rule differs from its predecessor in form but not in function. Wary that '[the] weakness of the accused under the strain of suspicion' may cause the accused to give a false, even if voluntary, confession," the Court continues, "the Supreme Court in 1954 embraced a variation on the rule to prevent 'errors in convictions based upon untrue confessions alone.'" The Court goes on, "[u]nlike the corpus delicti rule, the government need not introduce evidence independent of the accused’s confession to establish that the crime occurred."

The government generally may satisfy the rule by introducing substantial independent evidence that tends to establish the trustworthiness of the statement. This approach, the Court found, has the virtue of ensuring that these trustworthiness considerations extend to all confessions, including confessions in cases in which no one doubts a crime occurred, only who committed it.

The corroboration requirement differs from another requirement—that the confession be voluntary. Voluntariness goes to admissibility. Corroboration goes to sufficiency. A court may admit a confession into evidence as voluntary, but then reject it as uncorroborated (on the theory that even voluntary inculpatory confessions may be unreliable). Basically, jurors should not vote to convict based upon such a statement alone.

The Circuit Court concluded that there was sufficient independent evidence of the crime to provide corroboration of the defendant’s confession.


Tuesday, August 24, 2010

Acceptance Issue

An AFPD in our office offers this summary of a denial-of-acceptance case.


Direct Appeal



Defendant pleaded guilty to one count of bank fraud. The plea agreement provided that the government would not oppose the defendant's request for a reduction for acceptance of responsibility, but the presentence report recommended only "reservedly" that he receive the reduction.

At the sentencing hearing, the district court denied acceptance-of-responsibility credit, citing the PSR and a letter the defendant had written after his guilty plea that deflected responsibility for the offense. The district court placed the defendant in a higher guideline range than the defendant had anticipated, and utilized that range to impose a within-guidelines sentence of 34 months of imprisonment. Defendant appealed. Appellate court affirmed.

The appellate court rejected the defendant’s contention that the trial court erroneously denied him the acceptance-of-responsibility downward adjustment. Although the defendant pleaded guilty in a timely manner, post plea, he wrote a letter to probation claiming that he was the victim and that a co-defendant was entirely responsible for the offense. (The defendant had lied on loan applications, which, among other things, said he was employed and promised a salary of $52,000 annually. The defendant persisted in his denials at sentencing, even after the trial court had warned that it was seriously considering not granting the reduction for acceptance.)

The burden of proving that one qualifies for the acceptance reduction falls on the defendant. This defendant failed to make the required showing.

The sentence of 34 months, within the guidelines, was substantively reasonable.


A blip or a storm?

Yesterday, the Court issued a published decision in the case of Cvijetinovic v. Eberlin. Case No. 08-3629 http://www.ca6.uscourts.gov/opinions.pdf/10a0256p-06.pdf

The holding of the case is somewhat unremarkable (counsel not ineffective for failing to anticipate Blakely and state court precedent applying Apprendi); however, the dicta regarding the futility doctrine bears review. The defendant had argued that he was excused from raising an Apprendi claim on direct review, as the state courts had consistently held that Apprendi did not apply to Ohio sentencing schemes. The Court, in rejecting this claim, eliminated, or at least gutted, the futility doctrine to excuse procedural default. The Court noted that "the alignment of the circuits against a particular legal argument
does not equate to cause for procedurally defaulting it."

The Court recognized that, in holding in this fashion, it was inviting (and apparently requiring) counsel to raise all issues, in all cases, no matter how frivolous they may seem at the time in light of then existing law. The Court admitted "this rule could, under certain circumstances, lead to some potentially undesirable results. One jurist predicted that 'defense counsel will have no choice but to file one ‘kitchen sink’ brief after another, raising even the most fanciful defenses that could be imagined based on long-term logical implications from existing precedents.' United States v. Smith, 250 F.3d 1073, 1077 (7th Cir. 2001) (Wood, J., dissenting from denial of rehearing en banc). However, '[u]nless and until the Supreme Court overrules its decisions that futility cannot be cause, laments about those decisions forcing defense counsel to file ‘kitchen sink’ briefs in order to avoid procedural bars are beside the point.'”

So readers, what do you think? Are attorneys now tasked with filing "kitchen sink" briefs in all cases in order to preserve any and all claims, no matter how futile they may seem, until there is a Supreme Court ruling on the issue?

Monday, August 23, 2010

Troubling Decision on Jurisdiction

An AFPD in our office offers this summary and analysis.


Crack Re-sentencing and Rule 35 Denial Combined



The panel (Judges Boggs and Gilman and Chief District Judge McCalla) ruled that it had no jurisdiction to consider an appeal from the trial court’s denial of relief to the defendant under either the crack amendment or the Rule 35 request.

The Court found that, although it has been over five years since Booker, a number of open questions remain regarding Booker's ramifications. The instant case required the panel to decide Booker’s impact (if any) on the Court's jurisdiction to hear an appeal from a district court’s decision to reduce (or decline to reduce) a final sentence under § 3582(c)(2) and/or Rule 35(b). Panel points out that "the Supreme Court has recently clarified that Booker does not apply to such sentence-reduction proceedings," and cites Dillon. The panel concludes that it lacks jurisdiction to hear a defendant’s appeal of a grant/denial of a sentence reduction pursuant to these sections on Booker “reasonableness” grounds.

Dismissed the appeal for lack of jurisdiction.

Panel begins and ends the analysis by examining whether there is jurisdiction to consider the appeal at all. The government argued that the Court lacked jurisdiction to hear the appeal of the district court’s Rule 35(b) determination, but the government did not challenge jurisdiction to hear the appeal of the district court’s § 3582(c)(2) determination.

The Court, however, noted that subject-matter limitations on federal jurisdiction may be policed by the courts themselves sua sponte.

It would appear that this ruling---published as it is---severely limits a defendant’s access to the appellate court for a review of the denial of relief under Rule 35 and 18 U.S.C. 3582, perhaps more so than might have appeared to be the case based upon numerous cases where the 3582 denial has been routinely reviewed by the Circuit Court (e.g., career-offender denials).


Friday, August 20, 2010

Court grants habeas relief on Miranda violation

Today, the Court issued an opinion in Fields v. Howe, Case no. 09-1215, in which the Court upheld the granting of a habeas petition based upon a failure to provide Miranda warnings to an inmate in custody at a state facility.

The defendant was a state inmate, incarcerated on charges unrelated to those under investigation. At some point, detectives pulled the defendant from population, placed him a locked room, and interrogated him for up to 7 hours. Although they told the defendant he was free to leave, they did not read him Miranda warnings, and used force (through a corrections officer and by locking the door).

The Court held that "Because Fields was removed from the general prison population for interrogation about an offense unrelated to the one for which he was incarcerated, Mathis is the applicable law. None of the cited appellate cases, all of which were decided subsequent to Mathis, erode its essential holding: Miranda warnings must be administered when law enforcement officers remove an inmate from the general prison population and interrogate him regarding criminal conduct that took place outside the jail or prison."

The Court went so far as to call their ruling a bright line test, requiring - "A Miranda warning must be given when an inmate is isolated from the general prison population and interrogated about conduct occurring outside of the prison."

Wednesday, August 18, 2010

3B1.1 and Leadership---Good Result

Caption: Are the big penguins in the foreground leaders for 3B1.1 purposes? (Sorry, I just thought they were cute.)
United States v. Bathily, No. 08--2293 (6th Cir. Aug. 17, 2010) (unpublished).

Panel of Chief Circuit Judge Batchelder, and Judges Moore and Cole.

Offense: Fraud and aggravated identity theft (1028A).

Sentence: 48 months.

Issue: Was sentence procedurally unreasonable when district court sua sponte enhanced sentence in violation of the notice requirement of Rule 32 and failed to address arguments that the Sentencing Guidelines for fraud offenses yield excessive sentences in light of the § 3553(a) factors?

PSR Guideline Calculations: OL 17, CHC I, range of 24 to 30 months. + 2 years for 1028A.

Final GLs: Ct imposed 3-level enhancement under 3B1.1 (was 2 levels in PSR). Defendant got 3 levels off for substantial assistance, so range fell to 18 to 24 months.

Held: District court relied on impermissible factors in applying 3B1.1(b); sentence vacated and case remanded.


* A district court's application of an enhancement under 3B1.1(b), instead of (c), is not a departure that requires notice under Rule 32(h).

* Enhancements pursuant to Chapter 3 of the GLs are "adjustments," rather than departures.

* Courts cannot rely on irrelevant factors to make determinations under 3B1.1. The case of United States v. Anthony, 280 F.3d 694 (6th Cir. 2002), gives proper test for using "otherwise extensive" factors in applying 3B1.1.

* District court did not apply the Anthony test. And Court of Appeals could not apply test de novo b/c record insufficient.

* Failure to object to the factual basis for enhancement under 3B1.1(c) did not mean the PSR supported enhancement under 3B1.1(b).

Monday, August 16, 2010

ANOTHER 404(b) Victory - Conviction overturned

The Sixth Circuit has just released the case of United States v. Corsmier, in which the Court overturned the conviction, and remanded for a new trial, of an FPD client based upon the admission of improper 404(b) evidence.

The defendant was charged with mortgage fraud type offenses. At trial, the Government introduced, over objection by the defense, evidence that the defendant had accepted cocaine from a co-conspirator on several occasions.

In overturning the conviction, the Court found "The evidence of this occasional provision of small amounts of cocaine may not have any probative value at all. Whatever minimal probative value it may have, however, is surely outweighed by the prejudicial effect of admitting the evidence."

"The cocaine evidence muddied the image of a successful businesswomen that
Defendant hoped to paint. The dissent argues that the cocaine evidence is less
prejudicial because she was not charged with drug use. We disagree. Illegal drug use
not only indicates a propensity to use drugs but a willingness to break laws. Defendant
undoubtedly participated in a fraudulent scheme; the only question is whether she did
so knowingly. The cocaine evidence indicates to a jury that she was not only willing to
break the law but to do so with her alleged co-conspirator, Harris. Such a showing is
highly prejudicial and would outweigh any de minimus probative value the cocaine
evidence may have. For these reasons, the evidence was improperly admitted, and we
must remand for a new trial."

Friday, August 06, 2010

Can I Get a Whoo Hoo for Two Search-&-Seizure Wins

A very helpful AFPD in our office offers you:

Today, boys and girls, not one but TWO, count ’em, TWO, Motions to Suppress won by defendants and upheld on appeal. . . .


Government Appeal



On October 12, 2004, police pulled up in a police cruiser to a group of people standing outside an affordable-housing complex. They exited the vehicle and moved toward the group. An officer recognized one of the ppl in the group, the defendant, who was standing on the sidewalk and leaning against a car. The officer immediately told the defendant that the latter was "again trespassing" on the property. In the ensuing interaction, the defendant acknowledged in response to questions that there might be a warrant out for his arrest and that he had a gun. The officers arrested him; he was later charged with being a felon in possession of a firearm and ammunition.

On the defendant's motion, the district court ruled that the defendant had been seized illegally, and the court suppressed the physical evidence and the defendant's statements. The government appealed, making three arguments: 1) the defendant was not seized within the meaning of the Fourth Amendment when the officer first spoke to him; 2) if he was seized, the officer had reasonable suspicion to detain him; and 3) even if the officer lacked reasonable suspicion to detain him, the emergence of information that the defendant was wanted on an arrest warrant constituted an intervening circumstance that attenuated the taint of the unlawful seizure.

The court of appeals affirmed. The defendant was seized: a reasonable person would not have felt free to leave upon being approached by two uniformed officers in a marked car, singled out of a group, and immediately accused of a crime. The seizure was unlawful: the defendant was not trespassing or committing any other offense when the officers approached, and the fact that others in his group were drinking publicly and might have been trespassing did not constitute reasonable suspicion that the defendant had recently committed an offense or was about to do so. There was no attenuation: the defendant's statement about the outstanding warrant, made in response to a question posed by the officer at the outset of the seizure, was not a product of free will.

The incriminating evidence was obtained by exploitation of the illegality of the seizure---not by means sufficiently distinguishable to be purged of the primary taint.

The defendant was seized at the first contact with the police when they accused him of a crime (trespassing). A reasonable person would not have felt free to leave.

The police had no reasonable suspicion to believe that the defendant was violating the law or was about to violate the law when he was simply standing on a public sidewalk. The circuit court found that the proffered reasons by the government did not rise to the level of reasonable suspicion.

The statements by the defendant after his unlawful seizure and detention were not free of the taint of either when he made them. They were the fruit of those illegalities.

The totality of the circumstances, analyzed through the Brown factors, show that there was no attenuation of the connection between the officer’s unconstitutional seizure of the defendant and the incriminating evidence---the case called for a straightforward application of the exclusionary rule and the fruit-of-the-poisonous-tree doctrine. The incriminating evidence was obtained by exploitation of the illegality of the seizure and not through means sufficiently distinguishable to be purged of the primary taint. The district court correctly suppressed the evidence.

The district court correctly determined that the officers seized the defendant without reasonable suspicion of criminal activity. Neither the officer's hunch that the defendant might have had an outstanding warrant nor the defendant’s statement ("I think I got one") purged the incriminating evidence of the taint of the illegal seizure.



Government Appeal



The government appealed the district court’s grant of the defendant's motion to suppress crack-cocaine authorities found following a traffic stop. Defendant was charged with four drug-related charges, including conspiracy to distribute cocaine base and cocaine and two counts of distributing cocaine base. The district court granted the defendant's motion to suppress because the officers at the scene had no reasonable fear for their safety and did not have probable cause to effectuate a search incident to arrest. Appellate court affirmed.

The district court had rejected the officer’s claim that he was searching for weapons because the officer’s testimony that he suspected that the defendant was armed and dangerous was inconsistent with the facts. The district court correctly found that whatever reasonable concern for his safety the officer could articulate at the start of the stop dissipated during the nearly forty-three minutes he allowed the defendant to sit in the vehicle and stand along the roadside during the search.

The government did not contest this finding on appeal. And it was uncontested that there was no search or pat-down of the defendant during the forty-three minute interval the officers questioned the defendant and searched the vehicle.

As there was no Terry-stop search, the search was valid only if the officer had probable cause to believe the defendant had drugs at the time of the search. And there was no probable cause to search the defendant after a forty-minute traffic stop and vehicle search turned up nothing. Nothing the defendant did, before the attempt to search him a second time, gave rise to any probable cause. Even though, when the officers attempted the second search, the defendant tried to leave the area, this attempt to leave did not give the officers cause to search the defendant since the defendant’s actions were in direct response to the officers’ illegal second attempt to search.

The holding is two-fold. 1) The officer did not have probable cause to search the defendant’s person based on the tip that a similarly described vehicle might be transporting drugs and based on the defendant’s behavior before and during the search of the car. 2) The search of the defendant began in the absence of probable cause before he tried to flee. So, the officer did not have probable cause to search the defendant at the time the actual search began.

There was a dissent filed to this opinion. From the tone of the majority opinion and the tone of the dissent, one would surmise that this case provoked a ‘spirited’ discussion among the three judges.


Monday, August 02, 2010

Crack and SCOTUS

Hopefully, everyone's heard that Congress passed the Fair Sentencing Act of 2010, reducing the crack--powder disparity. The bill is not retroactive. It raises the minimum quantity of crack that triggers the 5-year mandatory minimum from 5 grams to 28 grams; and for the 10-year mandatory minimum, it raises the quantity from 50 grams to 280 grams. The amount of powder cocaine required to trigger the 5- and 10-year mandatory minimums has not changed (500 grams and 5 kilos). The bill also eliminates the mandatory minimum for simple possession of crack. The crack--powder disparity has shifted from 100:1 to 18:1.
SCOTUS: granted cert in Pepper v. United States, No. 09-6822 (June 28, 2010).
* Whether district courts can consider a defendant’s post-sentencing rehabilitation as a factor supporting a downward variance under 18 U.S.C. § 3553(a).

* Whether, as a sentencing factor under 18 U.S.C. § 3553(a), post-sentencing rehabilitation should be treated the same way as post-offense rehabilitation.

* Whether, when the original district judge does not resentence a defendant after remand, and a new judge is assigned, the new judge is obligated under the doctrine of the “law of the case” to follow the sentencing findings of the original judge (those that were affirmed on appeal).