Thursday, May 26, 2011

United States v. Tinklenberg: SC Reverses Sixth Circuit Twice but Still Affirms

The Supreme Court today released its decision in United States v. Tinklenberg, a case arising out of the Sixth Circuit. In Tinklenberg, the Court had to interpret two provisions of the Speedy Trial Act, which requires dismissal if a trial or plea does not commence within 70 days. The first provision excludes from the 70-day period “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” 18 U.S.C. § 3161(D).

The Sixth Circuit focused on the phrase “delay resulting from” and held that a pretrial motion falls within this exclusion only if it “actually cause[s] a delay, or the expectation of a delay, of trial.” The Supreme Court focused more on the phrase “from the filing of the motion through the conclusion of the hearing,” and held that this period of time is excluded “irrespective of whether it actually causes, or is expected to cause, delay in starting a trial.” While the Court acknowledged that the Sixth Circuit’s reading is “linguistically reasonable,” it pointed out that all other court’s that have decided this issue have gone the other way, and the Sixth Circuit’s rule would be significantly more difficult to administer.

The second provision excluded “delay resulting from transportation of any defendant from another district, or to and from places of examination or hospitalization, except that any time consumed in excess of ten days from the date an order of removal or an order directing such transportation, and the defendant’s arrival at the destination shall be presumed to be unreasonable.” §3161(h)(1)(F) (2006 ed., Supp. III) (emphasis added). The Sixth Circuit in interpreting this provision, exempted holidays and weekends. The relevant time period in Tinklenberg was 20 days, but that period included 3 weekends and 2 holidays, which meant that only 2 days counted for Speedy Trial purposes.

The Supreme Court held that Federal Rule of Criminal Procedure 45(a) at the relevant time did not apply to statutes, and that under the common-law rule, weekend days and holidays are included when counting a statutory time period of 10 days unless the statute specifically excludes them.

Accordingly, the Sixth Circuit’s two errors cancelled each other out: the first period should not have been excluded, but the second period should have been excluded. A win for Tinklenberg even if he has already served his sentence by this point.

Potential New Appellate Waiver Exception

In United States v. Bafna today, the Sixth Circuit highlighted a live issue without deciding it. Bafna argued that there should be an exception to appellate waivers when the sentence amounts to a miscarriage of justice. The Sixth Circuit recognized that the First Circuit follows this approach, but held that Bafna did not present an opportunity to decide the issue, as the facts of this case did not constitute a miscarriage of justice. See United States v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001). The moral of the story is that this issue is ripe for review: if you have a case with an appellate waiver, you may want to consider appealing anyway if the sentence constitutes a miscarriage of justice.

Tuesday, May 24, 2011

SC Clears the Way for Prisoner Release in California

Yesterday the Supreme Court released its decision in Brown v. Plata. That case arose out of California, where state prisons had been operating at around 200% capacity for at least 11 years. This resulted in myriad deficiencies in providing healthcare and mental healthcare for prisoners amounting to violations of the Eighth Amendment as well as unnecessary deaths. A three judge panel ordered that California remedy these violations by reducing prison populations to no more than 137.5% of design capacity, and the Supreme Court upheld that decision.

Ultimately, 137.5% means that there were 46,000 too many prisoners, but it does not mean that they must all be released. Instead, the state could construct new prisons, expand existing prisons, transfer prisoners to other states or to county facilities, increase good time credits, and increase the use of diversion and community-based programs. Indeed, California has already reduced the prison population by at least 9,000 while the appeal was going on. And the state has 2 years from the date of the Supreme Court opinion to achieve this. On the other hand, getting rid of 37,000 prisoners in 2 years is no small feat.

The dissents were concerned with the fact that this remedy would damage the public safety and result in the release of many prisoners whose Eighth Amendment rights have not been violated:

"It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the release order—the 46,000 whose incarceration will be ended— do not form part of any aggrieved class even under the Court’s expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym."

(Scalia, J., dissenting).

Friday, May 20, 2011

Gearing Up For Trial?

A couple of recent decisions by the Court of Appeals shed light on some very practical aspects of a criminal trial practice.

Double Jeopardy and Child Pornography

In United States v. Ehle, No. 09-5389 (6th Cir. 2011) (Rogers, J., Batchelder, C.J., & Keith, J.) the Court makes clear that possession of child pornography is a lesser-included offense of receiving child pornography and the defendant therefore could not be convicted of both.

Wearing Jail Clothes at Trial

United States v. Williams, No. 09-5256 (6th Cir. 2011) (Martin & Stranch, JJ.; Thapar, D.J. (EDKy.), concurring), explains that, while a defendant cannot be forced to appear at trial in prison clothing, the court is not required to furnish alternate clothing for the defendant. While we are certainly cognizant of the current federal budgetary difficulties, this ruling calls to mind Anatold France's observation that "the Law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." You have a constitutional right to not appear at your trial in jail clothes if you (or your appointed lawyer) can afford to buy something else for you to wear, otherwise you have to hope you look good in orange.

Presence at Sentencing

Also in Williams, the Court held that a defendant's constitutional right to be present at sentencing is not satisfied by the use of video conferencing. The quality of the video connection is irrelevant. Rule 43, F.R.Cr.P., requires that the defendant be present and says nothing about video conferencing. There was no proof in this case that the defendant was persistently unruly enough to justify his exclusion.

Waiver of Presentence Report

Finally, the hapless Mr. Williams helps us to understand that while a district court may, under Rule 32(c), F.R.Cr.P., sentence a defendant without a presentence report, a defendant may not waive preparation of a presentence report. That is, it is up to the district court, not the defendant, to decide whether or not sentencing can proceed without having a PSR done. Here the district court did not make the requisite finding that it could proceed to sentencing without a PSR and was, therefore, error.

Thursday, May 19, 2011

Finally, some math we can live with!!!

In the recent case of United States v. Brown, 10-1410, the Court sided with the Fifth and Ninth Circuits, holding that when a defendant is sentenced on a supervised release violation, that a district court is required to subtract any term of incarceration from any new period of supervised release (that is set at the maximum term).  In this case, the defendant was faced with 36 months maximum incarceration based upon an admitted violation of supervised release.  The court imposed an 8 month term of incarceration, and a 36 month term of supervised release.  On appeal, the defendant argued that the 8 month term needed to be subtracted from the 36 month term.  The Court agreed, finding "In our judgment, to conclude that the contested language of section 3583(h) does not mandate subtracting the length of any newly-imposed period of incarceration from a term of supervised release requires a disregard of the plain language of the statute. Even without prior Sixth Circuit precedent on this question of statutory interpretation, neither this court nor the district court is permitted to so ignore the clear import of Congress’s directive."  The Court remanded for further proceedings.

Congratulations to AFPD Paul Nelson from Grand Rapids!

Wednesday, May 18, 2011

Busy Week

Lots of cases to report, but no time this week. If another blogger wants to jump in, please do! I just don't have the time I wish I had to post this week.

SCOTUS and Searches

Searches, lack of a warrant, exigent circumstances. . . . I've only caught the highlights and have not read the opinion, but here's a link to the opinion in Kentucky v. King.

Police followed a suspected drug dealer to an apartment complex. Officers smelled marijuana outside an apartment door. They knocked loudly, announcing their presence. As soon as the officers began knocking, they heard noises inside the apartment. The officers thought the noises indicated that evidence was being destroyed. The officers announced they would enter the apartment. They then kicked in the door.

The Court found that the exigent-circumstances rule applies when officers do not create the exigency by engaging in conduct that violates the Fourth Amendment. Assuming exigency existed here, there was no evidence that the police violated the Fourth Amendment or threatened to do so.

8-to-1 opinion with Justice Ginsburg dissenting.

Right to Allocution

United States v. Garcia-Robles, No. 09–1980 (6th Cir. May 10, 2011) (to be published). Panel of Judges Sutton, Griffin, and Bertelsman (E.D. Ky.). Opinion by Judge Griffin.

In Garcia-Robles, the Court held "that upon general remand, when a sentence has been vacated on direct appeal, the defendant is entitled to a resentencing hearing where he may exercise the right to be present and allocute." Slip op. at 6. The Court emphasized the right to allocute upon remand. Id. at 7. The Court expressed the importance of the right to allocute: the right to allocute at resentencing, "despite a defendant’s previous opportunity to allocute, is essential." Id. at 8. A failure to afford a defendant this right is not necessarily harmless error. Id. at 11.

The Garcia-Robles court attempted to distinguish the decision in United States v. Mosley, No. 09--2359 (6th Cir. Mar. 29, 2011) (to be published) (discussed earlier in this blog), but the two cases seem to remain somewhat at odds. The Mosley panel included Judges Boggs, Moore, and Sutton. Judge Sutton, who was on the Garcia-Robles panel, wrote the Mosley opinion.

In Mosley, the panel took a narrower view of the right to allocution. While not addressing the government's contention that there is no right to allocution at a resentencing hearing for a limited remand, the court did decide that the defendant could not show prejudice.

Tuesday, May 03, 2011

Why read unpublished opinions

With opinions available on court websites and individually numbered on Westlaw, the line between published and unpublished opinions is fading. Judges will remind you unpublished opinions have limited precedential value, but even they cite them from time to time (as Judge White recently did on page 4 of United States v. Robert Jackson, found here). Why else should you read them?

Build and maintain a standard of review database

If you are going to write appeals, you're going to need to know the standard of review for your issues. I keep a folder of files labeled "sentencing," "motion to suppress," "motion to dismiss," etc. Each file contains a Wordperfect document where I have copied and pasted from 6th Circuit opinions what the standard of review is for that particular issue. When it comes time to write a brief on the issue, all I need to do is copy and paste into my brief.

Keep track of the Bostic objection

I'll probably post later in the week about the moving target that is the Bostic objection. What needs to be said, and when, seems to constantly change and depends greatly on what panel your case ends up in front of (or the mood of the panel that week). Sentencing appeal decisions are on the Sixth Circuit website almost every day. Checking in from time to time will help you make a better guess about what the proper incantations are.

Get a sense of what is going on in other districts and the general mood of the Court

In the Eastern District of Tennesee, many of our plea agreements contain appeal waivers that do not preserve any sentencing issues. Straight up, sentencing is left to the judge and there's no crying about it later. A recent unpublished opinion,on an appeal from the Eastern District of Michigan, gave me new ideas about language that might be put in those waivers. You can find it here (the waiver discussion starts on page three).

I also found it useful to read the Sixth Circuit's take on challenges to the Career Offender guideline. Starting at the last paragraph of page seven of this opinion, Judge Rogers gives a good overview of why such challenges will not have much traction with the Sixth Circuit. This is not to say the argument should not be made, but it gives you a better picture of what wall you are attempting to scale.

So, take some time to read unpublished opinions. Or at least come here to see if any are interesting enough for us appellate geeks to blog about.