Friday, July 29, 2011

6th Circuit: Doing Cocaine and Sleeping During Trial is Not Necessarily Ineffective Assistance

In Muniz v. Smith, the 6th Circuit today was dealing with a habeas corpus petition challenging a state conviction on ineffective assistance of counsel grounds. What was so ineffective? The defense attorney was charged with possession of cocaine approximately 3 weeks before becoming the defendant’s attorney. Also, a juror noticed that the defense attorney was sleeping during the cross examination of the defendant. The 6th Circuit denied the habeas petition.

How could this possibly be? Well, the court was not condoning the attorney’s cocaine use and sleeping during trial, rather the court held that the defendant could not show prejudice. Specifically, a witnessed testified that the defendant shot the victim in the face; the victim survived and testified that the defendant shot him in the face; a police officer testified that the victim told him the defendant shot him in the face while the victim was lying bleeding at the scene; and last but not least, the defendant’s own mother testified that the defendant called her and confessed to shooting the victim in the face. Because the evidence was overwhelming and “Muniz cannot establish that his trial counsel was asleep for a substantial portion of his trial,” counsel’s performance was not ineffective.

Thursday, July 28, 2011

6th Circuit Clarifies Blockburger Test as Applied to CP

We are all familiar with the famous Blockburger test that two convictions for essentially the same conduct do not violate the Double Jeopardy clause as long as each requires proof of a fact that the other does not require. If conviction A requires proof of 1, 2, 3, 4, and 5, while conviction B requires proof of 2, 3, 4, 5, and 6, then convictions for A and B do not violate Double Jeopardy.

Today in United States v. Dudeck, the Sixth Circuit clarified how this test applies to child porn (“CP”) cases. While recognizing that possession of CP is a lesser included offense of receipt of CP (because one cannot receive CP without also possessing it), the court provided a roadmap to all of the loopholes in the double jeopardy clause in this context. The actual holding of the case was merely that as long as the defendant “was charged with receipt of any images for which he was not also charged with possession—and vice-versa—the two can be punished as separate offenses.” This much was already clear, if the defendant is charged with receipt of images 1-100 and possession of images 2-101, then both convictions can stand.

This would seem like enough to support multiple convictions in every case, since there will almost always be more than 1 image of CP found on the defendant’s computer. But the Sixth Circuit went farther, in what was arguably dicta, to point out all the loopholes that could technically save multiple convictions when the prosecutor did not have the foresight to carefully distribute the images among the charges as described above. Specifically, the court suggested that multiple convictions might not violate the double jeopardy clause if:

1) receipt and possession occurred on different dates;

2) after receiving the CP, the defendant then transferred it to a different medium (e.g. if the defendant downloaded the CP off the internet and then transferred it to a cd or a folder on his computer); or

3) there were images in the possession charge that were not also in the receipt charge (i.e. receipt of images 1-10 and possession of images 1-20).

The court then went out of its way to point out that even if 2 of the defendants 3 charges were dismissed on double jeopardy grounds (the case was remanded for further fact finding on this issue), there was nothing to stop the district court from imposing the same sentence (i.e. 1 sentence of 120 months instead of 3 concurrent sentences of 120 months). Of course, while the district court is free in any case to impose the same term of imprisonment, the defendant would save $200 in special assessment if two of the charges were found to violate the double jeopardy clause.

Friday, July 22, 2011

Spears Again: Rejecting GLs

(A knight with a spear! Hey, it's hard to pick pictures. :) I'm trying!)

In United States v. Priester, No. 08--2391 (6th Cir. July 22, 2011) (published), the panel of Judges Boggs, Moore, and Kethledge considered the Spears issue again. Judge Boggs dissented.

The majority opinion starts out: "In some cases we hold the district court to a standard we would dislike imposing on ourselves. This is such a case." The defendant was sentenced pre-Spears. After parsing "the sentencing transcript, [the Court] agree[d] with [the appellant] that the district court appeared unaware of the authority that the Supreme Court expressly announced months later," that the court could vary from the guidelines based on policy reasons.

The Court found that the sentencing court's "comments go beyond mere silence as to whether the district court knew that it had the authority to reject the 100:1 ratio outright. Instead, they reflect an assumption that the court did not have that authority." The panel emphasizes that "The essence of Spears’s holding is that a district court can take the 100:1 ratio out of play, up front, before even determining whether the ratio yields an overlong sentence in a particular case. Here, the district court expressly stated that the ratio was in play—and then the court moved on to other issues. To say, on this record, that the court silently recognized its later-announced authority in Spears, but chose not to exercise that authority, would be mere fiction."

The panel distinguishes prior cases: "In both United States v. Johnson, 553 F.3d 990 (6th Cir. 2009), and United States v. Curb, 625 F.3d 968 (6th Cir. 2010), the district courts had been silent as to whether they had the authority later expressly granted to them in Spears. We remanded for resentencing in light of Spears. In United States v. Simmons, 587 F.3d 348 (6th Cir. 2009), we affirmed the defendant’s sentence on plain-error review. There, the defendant did not make a Spears-type argument in the district court, and the district court itself said nothing about the issue. Neither of those circumstances is present here."

Judge Boggs's Dissent:

Judge Boggs concluded that "in the context of our earlier cases, [the appellant's] claim should fail. As even the majority must concede, the crack-cocaine disparity was before the judge and he recognized that the guidelines are only a starting point. The record, read fairly, is bereft of any expression as to the judge’s authority to reject categorically a particular judgment or reasoning in the guidelines."

Thursday, July 21, 2011

Pre-Gant Law Governs Pre-Gant Searches

In United States v. Peoples, No. 09--2507 (6th Cir. July 20, 2011) (unpublished), the panel of Judges Gibbons, White, and Oliver (N.D. Ohio), addressed a pre-Gant vehicle search.

Sole question for the Court was "whether an officer’s objectively reasonable reliance upon binding appellate-court precedent constitutes an exception to the exclusionary rule under the Fourth Amendment." Court found that it does.

In Gant, the Supreme Court held that an automobile search incident to arrest is constitutional only if the arrestee can reach the vehicle or if the officers have reason to believe the vehicle contains evidence relevant to the crime of arrest.

In Davis, the Supreme Court resolved the dispute among the circuits as to whether the exclusionary rule, as clarified in Gant, should apply in cases in which the arrest occurred before the Gant decision. Supreme Court held that the exclusionary did not apply in such circumstances: “when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.”

Finding itself bound by this precedent, the Sixth Circuit concluded that the firearm that was seized incident to the defendant's arrest should not have been suppressed. While the search would no longer be permissible under Gant (the defendant was not within reaching distance of the vehicle when the officers searched the vehicle, and the officers had no reason to believe the vehicle contained evidence related to a suspended license), the search was permitted under the law as it stood when the search occurred.

The Court closed, "The officers committed no misconduct in relying upon th[e] settled precedent, and suppression of the firearm is not warranted."

Monday, July 18, 2011

All Sorts of Good News: Crack Memo from DOJ

On the heels of last week's good news (see Laura's post below), this week gives us an auspicious turn of the tide from DOJ.

On July 15, 2011, Attorney General Eric Holder issued a memo saying he concludes "that the law requires the application of the [Fair Sentencing] Act's new mandatory minimum sentencing provisions to all sentencings that occur after August 3, 2010, regardless of when the offense conduct took place." He directs prosecutors "to act consistently with these legal principles."

Professor Berman has blogged the issue and provides a link to the memo at:

Nice development on the FSA front. So, the Rojas, No. 10--14662 (11th Cir. July 6, 2011) (to be published), decision in the 11th Circuit should be safe! (A great FSA appellate win: FSA applies to defendant's sentenced after FSA enacted, regardless of offense date.)

I'll post more this week after I review the Court's decisions....

Friday, July 15, 2011

Exciting Tapia developments!

In United States v. David Brooks, 10-6556, issued today and found here, the Sixth Circuit holds that if rehabilitation is one of the reasons for a defendant's sentence, the sentence must be vacated and remanded for a new sentencing hearing. This is based on the Supreme Court's recent ruling in Tapia v. United States, -- U.S. --, 2011 WL 2369395 (2011). Though an unpublished opinion, I think Brooks gives strong support to any pending appeal where rehabilitation is cited as a reason for a given sentence. Fire up your 28j letters now.

The Court also released United States v. Modena, 10-1377, today (found here). In it, the Court finds Modena's Tapia argument unpersuasive. However, the District Court had said it did not think the criminal justice system had any way of rehabilitating Modena. Viewed in tandem with Brooks, it appears a sentence will be upheld if the court says, "there's nothing we can do for you," and vacated if the court says, "you need rehabilitation while in jail."

For those of us with appeals in the pipeline, these are exciting times. Happy Friday!

Friday, July 08, 2011

Ladies and Gentleman, we have a new acronym!

CEE: Child Exploitation Enterprise

In United States v. Daniels, 09-1386, the Sixth Circuit addressed 18 U.S.C. 2252A(g)(2) for the first time.

Daniels was convicted of running a prostitution ring in Detroit. He used adult women and juvenile girls, bringing some in from out of state and advertising their services on various internet sites.

The Court held CEE has three elements that must be proven:
1) the defendant committed at least three predicate offenses;
2) more than one underage victim was involved; and
3) at least three other people acted "in concert" with the defendant on the predicate offenses.

Having already upheld four predicate offense convictions, the Court found the first element was met. Several prostitutes testified they were underage at the time they worked for Daniels, so the second element was also met.

The third element failed. Three people need not be working together simultaneously, but they do need to be working in furtherance of the predicate offenses during the "series of felony violations." Thus, co-defendant Head, who helped coordinate prostitutes and post ads, counted. "Trouble," a prostitute who accompanied Daniels and Head when they picked up a juvenile prostitute in Maryland and spoke with the juvenile about her work also counted. Daniels's brother, who rented hotel rooms for the prostitutes, and his mother, who occasionally provided rides to Head and other prostitutes, did not count (likely because they were not explicitly acting in furtherance of the charged predicate offenses). Because Daniels only had two people acting in concert with him, he could not be convicted of CEE.

This opinion is worth a read/save for several other points:

It reitterates the six ways a photo of a child could be "lascivious"

2252A(a)(2)(A), which bans distribution of any child porn that has been transported through interstate commerce, is met by the two-stage posting process on Craigs List. The image was first transported in interstate commerce when the post was created. It was then distributed after the person posting replied to the confirmation email and the post then appeared on Craigs List.

2423(a)(transporting a minor to engage in sexual activity) does not require "knowing" the victim is under 18

Friday, July 01, 2011

Lesson learned: when the Court invites you to file a brief, you probably should!!!!!!

In an unpublished decision filed today in United States v. Wright, 08-6546 (11a0444n.06), the Court remanded a case for resentencing where the district court referred to uncharged, unsubstantiated "other offenses" in determining the sentence.  The gist of the claim was that the court, in sentencing the defendant, made reference to "other crimes" that the defendant must have committed (the court found that the defendant could not have been caught every time he committed an offense), and used this information in determining the sentence within the Guidelines.  The Court found that "While § 3553(a) requires a sentencing court to consider the nature of the offense before it and the defendant’s history, it does not permit the district court to speculate regarding potential crimes that the court has no factual basis for concluding were ever committed."

A more interesting aspect of the opinion, however, dealt with the United States' failure to file a brief on appeal.  The defendant's counsel had filed an Anders brief.  The Court entered an order giving the United States an opportunity to respond to the brief.  The United States declined to respond, instead stating a letter that "In the event the Court, as a result of its independent review of the record, determines that counsel is mistaken and that a non-frivolous issue exists", then the United States wished to brief the matter.

In its remand order, the Court noted that the United States had failed to brief the issues, and found, in response to the United States' letter, that "this Court is not required to respond to a party’s request that the Court assist the party with its briefing by identifying 'meritorious' issues."  The Court therefore held they would not review the claim for harmless error, and remanded for resentencing.