Monday, January 24, 2011

Sixth Circuit rejects constitutional challenges to ten-year mandatory minimum for enticing a minor

In United States v. Hughes, Case No. 09-5787 (6th Cir. Jan. 24, 2011), the Sixth Circuit rejected a defendant's challenges to his ten-year mandatory minimum sentence pursuant to 18 U.S.C. § 2422(b) for attempting to entice a minor to engage in a sexual act. The defendant based his challenges on three constitutional provisions: the Eight Amendment's guarantee against cruel and unusual punishment, the Fifth Amendment's guarantee of equal protection of the laws, and the Fifth Amendment's guarantee of due process of law.

As to the Eighth Amendment, the defendant argued that his sentence was "grossly disproportionate to his offense, thereby violating the Eighth Amendment's protection against cruel and unusual punishment." The court noted that the defendant had "a tremendously difficult burden to meet," as "[i]n the last century, the Supreme Court has struck down only a handful of non-capital sentences under the Eighth Amendment, and those cases have been egregious in the extreme." Here, the mandatory minimum sentence gave rise to "no inference of gross disproportionality," and the court therefore "join[ed] the other circuits to decide the question" by holding that the ten-year sentence did not offend the Eighth Amendment.

As to the Equal Protection Clause, the defendant argued that the Government lacks any rational basis to distinguish between his own conduct and the similar conduct prohibited by 18 U.S.C. § 2423(b), which addresses interstate travel and contains no mandatory minimum. The court first noted that "[a]s a technical matter," Sections 2422(b) and 2423(b) are "separate crimes encompassing different elements." Although both crimes address sexual contact with minors, Section 2423(b) "has no requirement that there be an element of enticement or coercion," whereas Section 2422(b) "requires that a defendant 'persuades, induces, entices, or coerces' a minor to perform illicit sexual activity, or attempts to do so." Thus, the court found that "Congress could reasonably have decided that attempting to induce, or otherwise compel a minor to engage in sexual activity was a more serious crime than merely crossing state lines with the intent to engage in illicit sexual conduct with a minor. . . . This distinction is a rational basis on which Congress could have decided to punish the crimes differently."

Lastly, as to the Due Process Clause, the defendant argued that he could have been prosecuted under a separate statute without a mandatory minimum and that his ten-year sentence "shocks the conscience." The court found that "[a]bsent some more pertinent allegation such as selective enforcement," it would not question the Government's exercise of its "broad discretion" in deciding which charges to pursue. The court further noted that whether the sentence "shocks the conscience" "is more properly presented as an Eighth Amendment claim, which we have already rejected." And to the extent that the defendant could argue that the Government has no rational basis for depriving his fundamental rights, the argument would similarly fail because he "has no fundamental right at stake."

Thursday, January 20, 2011

CP and Witness Liability

Doe v. Boland, No. 09--4281 (6th Cir. Jan. 19, 2011) (published). Panel of Judges Sutton, Griffin, and Bertelsman (E.D. Ky.).

Issue: "do the federal child-pornography laws exempt those who violate the law in the course of providing expert testimony?"

Defendant had been preparing expert testimony and exhibits for trial. He downloaded stock (innocent) images of minors and morphed them into CP. Used images to help his client fight CP charges. Defendant was a lawyer who specialized in tech-related legal issues. He was charged federally and got a deferred prosecution agreement. On top of this action, the parents of the children in the pictures sued the attorney under the civil remedy provisions of the federal CP statute. Dist ct rejected the civil claims, finding Congress did not intend the law to apply to expert witnesses. Court of Appeals reversed, finding no exceptions.

The attorney, the Court found, had no basis for denying that he knowingly possessed a computer disk that contained child pornography, which had been produced using materials that affected interstate commerce. Lawyer had stipulated that he had downloaded at least four images from the Internet (depicting real, identifiable minors in innocent poses) and then digitally manipulated the images to make it appear that these minors were engaged in sexually explicit conduct. The attorney had issued an apology, admitting “I do recognize that such images violate federal law.” (As part of the deferred prosecution agreement, the attorney had to make a public apology in a bar journal.)

The criminal and civil provisions covered the lawyer's conduct.

Citing 18 U.S.C. 3509(m), the Court pointed out that "If Congress did not want defense counsel to view, let alone possess, existing child pornography without governmental oversight, it is hardly surprising that Congress opted not to permit expert witnesses to create and possess new child pornography."

While the attorney had been authorized by the original district court to present expert testimony on digital-imaging technology, it did not authorize the creation or possession of new CP. Here, the interests of real kids were implicated.

Immunity did not apply.

Minimum $150,000 in damages was one of the things at stake.

Tuesday, January 18, 2011

Grant decided en banc: Rule 35s

This discussion is long, but this issue is a big one and this decision is one for which many of us have been waiting....

United States v. Grant, No. 07–3831 (6th Cir. Jan. 11, 2011) (published). En banc. Majority of Chief Judge Batchelder and Judges Gibbons (authored majority opinion), Martin, Boggs, Gilman, Rogers, Sutton, Cook, McKeague, Griffin, and Kethledge. Dissents and concurrences are detailed below.

We’ve blogged about this case in the past. Are the 3553(a) factors fair game once a Rule 35 releases the mandatory minimum?


* April 15, 2005, defendant pleaded guilty to the knowing possession of a firearm in furtherance of a drug trafficking crime (mandatory minimum five years), conspiracy to commit money laundering (maximum sentence of twenty years), operation of a continuing criminal enterprise (mandatory minimum twenty years). Mandatory minimum sentence was thus twenty-five years.

* Guideline range of 324 to 405 months for the continuing criminal enterprise and money laundering counts, with sentence for the firearm count to be served consecutively. PSR recommended the minimum guideline sentence of 384 months (32 years): 324 months on the continuing-criminal-enterprise and money-laundering counts plus the 60-month mandatory minimum for the gun.

* Before sentencing, the government requested a downward departure under 5K1.1. Government explicitly did not request a departure under 18 U.S.C. § 3553(e), so district court lacked authority to impose a sentence below the mandatory minimum. Government recommended the statutory minimum sentence of 25 years (7 years below the bottom end of the GL range).

* Government indicated that if the defendant continued to testify truthfully the government would file a Rule 35(b) motion recommending a further reduction to 16 years.

* The district sentenced the defendant to 300 months (25 years). On appeal, the panel affirmed: United States v. Grant, 214 F. App’x 518 (6th Cir. 2007).

* April 16, 2007, the government filed a request for a sentence reduction under Rule 35(b). District court for the first time had the authority to impose a sentence below the statutory minimum. Government noted that the defendant had testified for the prosecution in a state homicide trial. It requested a 9-year sentence reduction (to 16 years), which was equal to half of the sentence originally recommended in the PSR.

* District court granted the government’s Rule 35(b) motion and reduced the sentence to 192 months (16 years). Defendant appealed.


* While the appeal ultimately sought a greater reduction in sentence, the argument was that the methodology the district court used to impose sentence was in violation of the law. The defendant claimed that the district court committed an error of law by misapprehending the factors it was allowed to consider in deciding the Rule 35 motion. The Court thus had jurisdiction under 18 U.S.C. § 3742(a)(1).


* Whether district courts may consider factors beyond substantial assistance in ruling on a Rule 35(b) motion to reduce sentence, and if such factors may be considered, how do they impact the extent of any reduction.


* Text of rule does not tell whether it authorizes district courts to look to § 3553(a) factors in deciding the extent of a reduction. Based purely on a reading of the text, the Court could not conclude that consideration of the § 3553(a) factors is prohibited, permitted, or required.

* Looking outside text, however, sheds light. The title of Rule 35(b) is: "Reducing a Sentence for Substantial Assistance." This title undermines the defendant’s position. While a plain reading of the text of the rule may be ambiguous, examination of the context of the rule suggests that the district court acted within its discretion in examining only the value of the defendant’s assistance.

* Court has rejected the notion that factors not related to cooperation may be considered in connection with a motion under § 3553(e) motion. Court cites United States v. Bullard.

* Court finds that "At most, the 2002 amendment injected a bit of ambiguity into the text of Rule 35(b). The amendment does not speak to consideration of the § 3553(a) factors. The amendment does not change the purpose of Rule 35(b) or require a departure from the longstanding practice of interpreting the rule in lockstep with § 3553(e) and § 5K1.1. Upon reading the text of the rule in conjunction with its history and broader statutory context, we resolve the ambiguity against [the defendant’s] favored interpretation of the amended rule and conclude that Rule 35(b) permits reductions based on substantial assistance rather than other factors."

* In terms of Booker, the Court notes that the Sixth Amendment right to a jury trial, the topic of concern in Booker, has no application in the Rule 35 context.

* Court also notes, "Most importantly, in United States v. Dillon, 130 S. Ct. 2683, 2693 (2010), the Supreme Court held that Booker does not apply to sentence reductions under 18 U.S.C. § 3582(c)(2), a context closely analogous to Rule 35(b) reductions. Significantly, the Court analogized § 3582(c)(2) proceedings to Rule 35(b) proceedings and described both as ‘congressional act[s] of lenity’ that do not entail ‘plenary’ resentencings."

* Whether the original sentencing hearing included full consideration of the § 3553(a) factors was immaterial to the original sentence. The district court gave the lowest possible legal sentence. Application of § 3553(a) is not constitutionally required. That provision has no status beyond that which it is given by statute or rule in a given context and courts routinely sentence defendants according to mandatory minimums and without reference to the § 3553(a) factors.

* Explicit language of the rule permits relief only when there has been substantial assistance. If a court determines that a defendant did provide substantial assistance within the meaning of the rule, the rule gives the district court sufficient discretion. The granting of the motion is discretionary, as is the extent of any reduction. The government may recommend a particular reduction, but the district court may exercise its discretion as it sees fit. The district court is free to give a lesser or greater reduction than the recommendation. But the value of the substantial assistance is the governing principle in this exercise of discretion, and the reduction may not exceed the value of the defendant’s assistance.

Judge Merritt’s Concurrence:

Judge Merritt concurred "in the court’s disposition of this case because it gives the district court wide discretion to go above or below the government’s recommendation in substantial assistance cases." The judge "believe[s] this wide discretion gives the district court room in its reconsideration of the sentence to do justice in the case and avoid a sentencing process in which the prosecutor rather than a neutral magistrate controls the sentence."

Judge White, Concurring in Part and Dissenting in Part:

The judge is "not convinced that Congress intended one rule to apply to motions under § 3553(e) and a different rule to apply to motions under Rule 35(b), and given the history of the various amendments to Rule 35(b) [the judge] cannot agree with the dissent’s conclusion that the amendments changed the permissible considerations in ruling on a Rule 35(b) motion." The judge agrees with the majority that the consistent interpretation of § 3553(e) (to permit consideration of the value of the assistance and nothing else) dictates the decision in the case.

The judge concurs with the majority’s conclusion that in a Rule 35 resentencing the court’s task is to grant a reduction that reflects a defendant’s substantial assistance.

Judge Clay’s Dissent (with Judges Keith, Moore, and Cole):

Finds that, without deciding whether the district court was required to consider § 3553(a), "as the panel majority found," district courts are not prohibited from doing so. In finding that it was prohibited from doing so, the district court here committed legal error.

Finds that "Judge Gibbons’ en banc majority opinion would authorize district courts to consider myriad factors in this regard—so long as the courts do not acknowledge that the factors emanate from § 3553(a)."

The district courts are instructed by the majority opinion that Rule 35(b) does not require or authorize consideration of § 3553(a) factors, but that they may take into consideration the practicalities of the context in valuing a defendant’s substantial assistance. Many of these factors(as discussed by the majority and including the nature of the offense and the defendant’s capacity to abide by the law) are similar to the factors enumerated in § 3553(a). The "District courts will have to struggle to sort out the internal inconsistencies and ambiguities of the majority opinion, and this Court may be required to revisit the issue again in the near future," the dissent finds.

While many courts have relied on the phrase "to reflect" in holding that factors other than substantial assistance may not be considered on a Rule 35(b) motion, the 2002 amendments to the rules removed this phrasing and left Rule 35 to provide for a sentencing reduction "if the defendant’s substantial assistance" was of a certain kind.

The change in the plain language of the rule is significant to the dissent. "Whereas the word ‘reflect’ suggests the latter taking into account the former," the dissent points out, "the word ‘if’ denotes merely a condition precedent."

Once Rule 35(b) pierces the mandatory minimum, there is no reason why a defendant should be deprived of a district court’s consideration of the § 3553(a) factors to arrive at an appropriate sentence.

Dissent notes that "Although we have held that district courts may consider only the extent of a defendant’s cooperation on a pre-sentence motion for a downward departure under 18 U.S.C. § 3553(e), . . . [cites Bullard] this limitation is grounded in factors enumerated in the Sentencing Guidelines, U.S.S.G. § 5K1.1, upon which Bullard relies in part. No such factors are present with respect to Rule 35(b)." And "Bullard and the cases it cites as authority were decided at a time when the Sentencing Guidelines were mandatory, and, notably, § 3553(e) requires the reduced sentence ‘to reflect’ the defendant’s substantial assistance, phrasing that was excised from Rule 35(b)."

The dissent concludes, "Contrary to the position taken by the majority, the district court had the discretion to consider the § 3553(a) factors in the context of a Rule 35(b) motion. Whether the district court was required to do so is a question for another day."

Attention Appellate Attorneys: Read Plea Agreements Carefully!

United States v. Jones, No. 09-3970 (6th Cir. Jan. 18, 2011) (unpublished). In Jones, the Sixth Circuit overturned a conviction under 18 U.S.C. 924(c) on a technicality. 924(c) contains two separate offenses:

(1) using or carrying a firearm during and in relation to a drug trafficking crime, and
(2) possessing a firearm in furtherance of a drug trafficking crime.

In Jones, the defendant pled guilty to a combination of the two offenses, “possession of a firearm during and in relation to a drug trafficking crime.” But the Sixth Circuit held in United States v. Combs, 369 F.3d 925 (6th Cir. 2004), that the government may not mix and match elements from the two separate 924(c) offenses. Accordingly, the defendant’s 924(c) conviction was overturned in Jones.

So it may pay off to go over the jury instructions and plea with a fine-toothed comb to look for any mismatching of the elements in a 924(c) appeal.

Wednesday, January 12, 2011

More IAC---Trial in an Hour, Anyone?

Fuller v. Sherry, No. 09--2147 (6th Cir. Dec. 30, 2010) (unpublished). Panel of Judges Boggs, McKeague, and Quist (W.D. Mich.).

Petitioner was appointed new defense counsel one hour and twenty-eight minutes before jury selection began in his state case. He argued in this habeas case that he was entitled to a presumption that his counsel was constitutionally ineffective: "it is unlikely that any attorney could provide competent representation with so little preparation time." The Count found, however, that the presumption of ineffectiveness is limited to particularly egregious circumstances, and because the petitioner's "case was fairly straightforward, and witnesses and evidence had been identified by his previous counsel, we decline to apply the presumption and affirm the denial of [the petitioner's] petition."

State charges were resisting and obstructing an officer, CSC 4, and possession of marijuana. Petitioner requested new counsel on the day of trial and the court appointed another attorney present in the courtroom on another matter.

During a lunch break, the new attorney requested an adjournment and relayed to the court a number of requests petitioner had made, including requests for discovery of the criminal history of the witnesses, funds for a private investigator, a motion filed regarding the prior conduct of a complaining officer, and videotapes of the store, jail, and police vehicle. Petitioner also sought two additional witnesses: a police detective and the owner of the store at which the offenses allegedly occurred. The attorney admitted that she did not know the purpose of some of the requests; she made a motion in limine to exclude evidence that the petitioner was on parole, which was granted; and she informed the court that the petitioner was notified of a plea offer. The court recessed for an hour.

After this recess, the attorney asked the court for an adjournment, stating that b/c of the circumstances she had had no time to prepare. The petitioner also wanted an adjournment for other reasons. The court responded that none of the petitioner’s discovery motions had been filed properly and denied them. In response to the request for an adjournment, the court stated: that it was satisfied that counsel was competent and could provide "adequate representation"; counsel "was aware of jury trial, was preparing on another case for jury selection today. So I'm satisfied that counsel certainly was prepared for jury selection in this case"; and that there had "been a number of discovery requests that I really quite frankly don’t even understand how it would be logical, or relevant, or material, or admissible in this case." The court then asked, "Defense counsel ready?" and continued, "I’m ready to try the case. Bring in the jury, we’ll have opening statements."

As the Court of Appeals said, the issue was "whether, under Cronic, [the petitioner] is entitled to a presumption of ineffective assistance of counsel in violation of the Sixth Amendment."

The Supreme Court has identified three situations in which a defendant is entitled to a presumption of IAC (w/o resort to the Strickland test): 1) the "complete denial of counsel," including situations in which counsel was absent at a key stage of the proceedings; 2) situations in which counsel entirely fails to subject the government’s case to meaningful adversarial testing; and 3) situations in which the likelihood that any lawyer, even a completely competent one, could provide effective assistance is so small that a presumption of prejudice is warranted.

Under this third Cronic category, the presumption of prejudice applies in "limited, egregious circumstances." The presumption is warranted "only when surrounding circumstances justify" its application, not just because counsel was appointed belatedly and the court refused to grant additional preparation time. There are five factors relevant to evaluation of counsel’s effectiveness in a given case (Cronic did not say that all of the criteria are required or that the criteria are exclusive):

1) time afforded for investigation and preparation;

2) experience of counsel;

3) gravity of the charges;

4) complexity of any possible defenses; and

5) accessibility of witnesses.

If the presumption is to apply, analysis of the criteria must show that counsel failed to function in any meaningful sense as the prosecution’s adversary. Otherwise, a defendant must be able to point to specific errors by his or her attorney to make out an ineffective assistance claim under Strickland.

Analysis of Factors:

Although the short period of time allowed for counsel to prepare was "indeed striking," tardy appointment of counsel alone does not warrant application of the per se rule. And the petitioner was never completely without the aid of counsel. The Court noted that the new attorney may not have had an opportunity to actually consult with the old attorney whom she replaced, so it would be improper to conclude that she benefited from all of the prior attorney’s trial preparation. She had to rely on her brief conversation with the petitioner, police reports, and the transcript of the preliminary exam. But, the Court found, given that the witnesses and evidence had already been identified and the preliminary examination transcript suggested the witnesses’ likely testimony, the nature of the case was largely established when the new attorney took over. She did not have to go to trial completely unprepared.

And she was an experienced criminal attorney. While the petitioner received a lengthy sentence, this sentence was based more on his status as a habitual offender than on the gravity of the charges he faced. As the prior attorney had been responsible for investigating the case, the relevant witnesses had been identified and prepared for trial before the new attorney was appointed.  

The Court recognized that in some circumstances appointing new defense counsel on the day of trial may "so damage the integrity of a criminal trial that a presumption of ineffectiveness would be justified," but the Court found that that was not so here. Because the case was "fairly straightforward," and witnesses and evidence had been identified beforehand, it was possible for this experienced criminal attorney to provide an effective defense, even if she had little time to speak with her client or review discovery materials.

The Court affirmed denial of habeas relief.

Appellate Waivers and IAC

Zvonko Sarlog v. United States, No. 09--3033 (6th Cir. Jan. 7, 2011) (unpublished). Panel of Judges Boggs, McKeague, and Quist (W.D. Mich.).

2255 case.

District court denied the 2255. Claim was IAC: failure to file notice of appeal. Petitioner claimed he'd requested an appeal. Petitioner also claimed IAC for counsel's failure to argue properly against certain guideline enhancements.

Court of Appeals remanded for evidentiary hearing.

Petitioner's plea agreement had broad appellate waiver. But when the court explained the provisions during the plea hearing, the court misspoke. The court told the petitioner he would be able to challenge certain potential GL enhancements on appeal if the sentencing court applied them. Neither party objected to the explanation of these appellate rights.

The sentencing court applied the enhancements, but granted a downward variance. No direct appeal filed. Petitioner filed pro se 2255. District ct denied the motion without an evidentiary hearing.

Rule re Hearings: Petitioners are entitled to prompt hearings unless unless record is clear that the petitioner is not entitled to relief. Burden for establishing entitlement is relatively light.

Rule on IAC and Appeals: Duty to file if client requests. Counsel may have duty to consult, even if client has not requested an appeal.

Issue 1: Petitioner argued that it's IAC to fail to file a notice of appeal and/or consult re an appeal even if there's an appellate waiver. Circuit split on issue. Court decides not to weigh in b/c the Court rules in the petitioner's favor on Issue 2.

Issue 2: Petitioner did not knowingly and voluntarily waive his right to appeal. While statements by a court cannot supercede the terms of a plea agreement, the plea-taking court here misstated the terms of the waiver before the plea was accepted. When a defendant misunderstands the terms of a plea agreement based on statements by the court, the waiver is not knowing and voluntary. The court said that the petitioner retained the right to appeal, so his waiver of this right was not knowing and voluntary.

Because petitioner retained his right to appeal, he had a right to have his attorney file the notice of appeal.

District court should have conducted an evidentiary hearing on the issue of whether the petitioner instructed his attorney to appeal. If the petitioner instructed his attorney to file a notice of appeal and the attorney failed to do so, the attorney was per se ineffective and petitioner would be entitled to a delayed appeal.