Tuesday, August 30, 2011

He says - she says: Court says - Suppress!!!

Any person with possessory interest in a property can refuse consent to search a premises, despite another resident's consent.  In United States v. Johnson, Case No. 09-6461, police received an anonymous tip that there was marijuana and a firearm at a residence.  They then went to the residence to conduct a "knock and talk" to investigate further.  A woman answered the door.  Officers asked to search the residence.  Two other people emerged from another part of the residence.  Out of the three persons present, two of the persons consented to a search, the third, the defendant in this case, testified that he did not consent, and informed police that he lived at the residence.  As you may have guessed (if not, why would we be talking about this case?), police searched, and found all sorts of goodies, leading to the defendant's arrest and prosecution.

The court ruled that there is no hierarchy for police, to determine which resident has a superior possessory interest in a property.  Rather, so long as the defendant has a privacy interest, his denial of consent has Fourth Amendment effect.  Therefore, "Johnson’s express objection to the search was sufficient to render the search of the bedroom unreasonable as to him, notwithstanding the consent given by Karen and Conerly."  The Court therefore ordered suppression of the evidence.

Congratulations to AFPD Anne-Marie Moyes of the Nashville office!

Thursday, August 25, 2011

The ACCA, Sykes, Oscar, and Yogi

Well, we all knew that the good times couldn’t keep rolling forever. After a two-week span of favorable opinions regarding the Shepard/Taylor categorical approach — including United States v. McMurray and United States v. Gardner — something had to give. That something was United States v. Coleman, published yesterday.

Thanks to the Armed Career Criminal Act, Coleman managed to receive a 15-year sentence that everyone seemed to agree was “harsh on the facts of this case.” Specifically, Coleman found “an unloaded, dilapidated firearm frame that had no trigger assembly and could not be made readily operable.” Under the logic of the federal criminal code, however, a “firearm frame” is the same as a “firearm,” and he was arrested as a felon in possession. Unfortunately for him, Coleman had three prior Ohio convictions for burglary, making him eligible for the ACCA. Or was he?

Yes, yes he was. You see, Ohio’s burglary statute is delightfully “non-generic” under Taylor, because it includes such non-traditional “structures” as watercraft, aircraft, railroad cars, trucks, tents, etc. Nevertheless, under the pesky residual clause of the ACCA the Ohio offense still “presents a serious potential risk of physical injury to another.” This is because, according to the opinion, the Ohio statute requires that any lean-to, yurt, or shanty that was burglarized had to be “occupied.” Like “firearm,” however, “occupied” has multiple meanings. In the Buckeye State it can also mean (1) “maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied”; or (2) “specially adapted for the overnight accommodation of any person.” So in case you’re wondering, yes, “occupied” can, in fact, mean “unoccupied.” But this requirement that the burglarized structure be “occupied” was enough to up the danger level to others and make it similar to your classic, gold-standard burglary.

So Coleman gets 15 years because of (1) a found gun that did not — and could never — work, and (2) three prior “burglaries” that might have involved breaking into a garbage dumpster that was unoccupied but was “specially adapted for overnight accommodation” by, say, Oscar the Grouch. There is no silver lining here for Coleman, but is there for other defendants? Possibly. For those keeping track of this kind of thing, Coleman cites three times to Begay, the golden child of ACCA analysis, and only once to Sykes, the evil red-headed stepchild. Here’s that entire cite: “But the Supreme Court has recently made clear that the absence of a statutory element requiring proof of [purposeful, violent, and aggressive conduct] is not by itself a ground for concluding that an offense is not categorically violent. See Sykes . . . .” This near-dictum is unfortunate, but at least the Sixth Circuit did not see fit to follow the bizarre suggestion in Sykes that the appellate court somehow tabulate all burglaries in Ohio and see what percentage involved a risk of harm, as Justice Kennedy appeared to advocate. Do any other readers/commenters out there (all two of you) think we are avoiding the full Sykes-ocalypse foreseen by many legal Cassandras, or is this just the death-by-a-thousand-cuts of Begay?

One last little thought-exercise for you: Taylor specifically based its holding on the fact that the Missouri burglary statute in question had non-generic elements because it included breaking and entering into “any booth or tent, or any boat or vessel, or railroad car.” Because Taylor could have committed his crimes by breaking into a tent, he could not categorically be said to have committed “burglary” in the generic, federal sense of the word and therefore did not qualify under the ACCA. Here, the Ohio statute also allows for “burglary by tent,” but according to the Sixth Circuit the burglary can qualify Coleman for the ACCA because of Ohio’s “occupancy” requirement. But the “occupancy” requirement also includes any unoccupied dwelling (including a tent) that was “specially adapted for the overnight accommodation of any person.” Here’s the question: Aren’t all tents “specially adapted for the overnight accommodation of any person”? In Taylor, was Justice Blackmun really only concerned with tents that hadn’t yet been pitched? Did they have to be rolled up? More importantly, if Yogi Bear took a pic-i-nic basket from three separate tents on “occasions different from one another,” is he ACCA-eligible? In Ohio, the answer appears to be yes. Campers of the world rejoice. Coleman, not so much.

Tuesday, August 23, 2011


What if you proved that a Guideline was empirically baseless and nothing happened? This head-scratcher — once used by Buddhist monks to induce a meditative state — is exemplified in yesterday’s unpublished Campana opinion and today’s unpublished Sanchez opinion.

After Campana was discovered uploading child pornography onto the internet from his Yahoo! account, authorities searched his home and found pornography on a total of 74 floppy disks. (Between the “floppy disks” and the Yahoo! account, Campana has taken the I-Love-The-90s! fad to a new level.) All told, Campana possessed 557 images and 18 videos containing child pornography, which practitioners in this area will recognize as an average-to-below average amount for such defendants. But it will come as little surprise to those same practitioners that Campana’s Guidelines range was 360 months to life, based on an offense level of 42 and a criminal history category of I. Presumably this offense level calculation included all the usual enhancements, and possibly a 5-level bump for his attempt to distribute to people claiming they were minors. Don’t worry about Campana though — it’s not nearly that bad for him thanks to the statutory maximums. They knock him down to an easy-breezy 20 years, with 15 years’ supervised release after that.

But here’s what’s weird: Campana’s attorney evidently sought to do what good attorneys do in these cases by pointing out that this Guideline has no empirical basis whatsoever and was entirely the product of Congressional whimsy. Here’s what’s weirder: The sentencing judge agreed, stating that he or she was “persuaded that the guideline provisions relating to child pornography of this nature do not reflect the kind of . . . empirical data, national experience and independent expertise that are characteristic of the commission’s institutional role” and opting to treat them as non-binding. Phew.

So what sentence did Mr. Campana receive? The statutory-maximum 20 years. On what § 3553(a) factors did the district court base this multi-decade sentence? Reader, I do not know. You see, the first part of the sentencing discussion is dedicated to upholding the sentence on substantive reasonableness grounds where the district court apparently failed to discuss several of those factors. Despite apparently finding the Guidelines completely baseless and non-binding, the district court gave Campana the highest possible sentence, the stat max, in light of “[t]he defendant’s lack of criminal history, his history of gainful employment and the likelihood that treatment while incarcerated and a lengthy term of supervised release will protect the public and deter Mr. Campana and others from committing similar crimes.” That’s all we know.

If you are not yet entering a trance-like meditative state, contemplating the nothingness that both is and is not your existence, take a look at today’s unpublished Sanchez case. There, the defendant raped and molested his daughter between the ages of 6 and 12, at which point he started filming the rape. He also raped his daughter’s half-brother and forced her to watch. Guess what his Guidelines range was for producing child pornography while raping his daughter. Go ahead, guess. . . .

It was 235-293 months: less than Campana’s. In fairness, the statutory minimum for Sanchez was 300 months, and he ultimately received 360, but if you need any further proof that the child pornography Guidelines are baseless — or if you need a Zen koan wrapped in a riddle wrapped in an enigma wrapped in a beautiful flower — look no further than to Campana and Sanchez.

Monday, August 22, 2011

AEDPA v. Brady: AEDPA Wins

In a difficult and factually-intensive en banc death-penalty decision, the Sixth Circuit addressed what standard to apply in reviewing the materiality prong of a Brady claim in a habeas appeal. It will come as little surprise to many court observers that the court answered with the sort of “super deference” that has characterized much of the last decade of AEDPA jurisprudence, and even less of a surprise that the petitioner lost. The case is Montgomery v. Bobby, published today.

As with any murder case on habeas review, the facts here are messy, involving a double-murder with a robbery-motivation, two individuals who were complicit in the crime, one who said the other did it while taking a plea offer, and the other taking the fall. The evidence was bad for both men, but worse for Montgomery. There was some question as to when the murder actually occurred, and the prosecution settled on a theory regarding one date. The police, however, had taken statements from witnesses saying that they had seen the victim alive in a car days after the date on which the murder was said to have happened. That police report was not handed over to the defense, and never materialized until years later after a FOIA request. Although Montgomery lost in state court, the district court granted a writ of habeas corpus in light of the Brady violation.

As to the first two Brady factors, nobody disputes that the evidence was favorable to Montgomery as both potential exculpatory and impeachment evidence, or that it was willfully or inadvertently suppressed by the State. The action in this case was in the third factor: materiality.

The majority determined that the materiality factor was not met. The test for materiality under Brady requires a “reasonable probability that the suppressed evidence would have produced a different verdict,” which the panel distinguished from the mere possibility that the evidence would produce a different verdict. Here, there was certainly strong evidence against Montgomery, including purported eyewitness testimony of the shootings, Montgomery’s admission that his gun was used in the shootings, and the fact that Montgomery possessed the gun after the shootings. The Brady evidence — which undermined the prosecution’s theory only about the date on which the murders occurred — certainly did not exculpate Montgomery entirely.

Where the withheld evidence would perhaps have proved more useful was in impeaching Montgomery’s accomplice, who had a considerable motivation to lie. The majority reiterated, however, that “[e]vidence that is merely cumulative to evidence presented at trial is not material for purposes of Brady analysis.” Brooks v. Tennessee, 626 F.3d 878, 893 (6th Cir. 2010). The Sixth Circuit is unusually quick to find that impeachment material is “cumulative” when a witness was already impeached at trial, and, according to the majority, Montgomery had thoroughly explored his accomplice’s motivation to lie and factual inconsistencies. This case therefore adds to a line of other cases in which relief is denied due to lack of materiality under Brady. See Bell v. Bell, 512 F.3d 223, 237 (6th Cir. 2008) (en banc); Brooks, 626 F.3d at 893-94. While some other circuits have found that impeachment evidence is not cumulative where it presents an entirely different subject on which to impeach a witness rather than merely piling on more evidence of the same type, the majority disagreed and made special note that “[t]his argument is beside the point.”

A thorough dissent from Judge Clay minces few words in criticizing the majority’s application of Brady to the facts of this case. Among other things, Judge Clay disagreed that Sixth Circuit precedent required a finding that the Brady evidence was cumulative, and pointed to numerous cases that held or implied that “new evidence” is not cumulative if it “differs both in strength and subject matter from the evidence actually presented.” Because this Brady evidence was of an entirely different type than had been previously used and would present a different avenue for impeachment, relief should have been granted. Judge Clay also scolded the majority for its “rubber stamping” of the facts as viewed by the state courts.

Judge Merritt’s forceful dissent is especially noteworthy. He points out that the majority has effectively conflated the Brady standard with the Strickland standard in creating a presumption of “trial regularity,” even in the face of “blatant prosecutorial misconduct.” Thus, Brady’s bright-line Due Process rule has been morphed into the sticky Strickland standard, at the expense of Brady’s insistence on deterring prosecutorial misconduct. Judge Merritt argues that the exact opposite standard should apply: “If, as the Supreme Court states, prosecutors are bound to know and follow the Brady rule, and in fact do know its meaning, and even so they then conceal the exculpatory evidence from the defendant, the inference should be that they concealed it because they believed it would hurt their case.”

As of today, however, the presumption appears to point in the opposite direction, and Brady claims face an uphill battle on habeas review.

Tuesday, August 16, 2011

Crimes by Soldiers: Military v. Civilian Prosecutions

In a highly-publicized case, United States v. Green, (available here), a former U.S. Army infantryman was convicted by a jury and given five consecutive life sentences for a number of crimes, including murder and sexual assault. Four co-defendants were convicted by the U.S. Army, court-martialed, given much lower sentences, and will be up for parole in a few years.

The Army had no authority to prosecute Green because he was no longer a soldier, and the general federal criminal statutes do not extend to his conduct overseas. Thus, civilian prosecutors charged him under the Military Extraterritorial Jurisdiction Act (18 U.S.C. § 3261) for his role in the crimes committed against an Iraqi family. “For many years there was a “jurisdictional gap” that allowed ex-servicemembers to escape prosecution for crimes committed on foreign soil while a member of the Armed Forces. In 2000, Congress passed MEJA to close this gap.”

The Sixth Circuit found the district court had jurisdiction to try Green under MEJA because he had been validly discharged from the Army, and that MEJA is constitutional because it does not violate the separation-of- powers principle or the nondelegation doctrine, equal protection, or due process. The Sixth Circuit partly places blame for this crime onto military leadership:
"We will never know the whole story of why Green and his fellow infantrymen went crazy on the afternoon of March 12, 2006. These events are, in part, a leadership failure but nonetheless a blot on the storied honor of the famed Screaming Eagles of World War II, Vietnam, and the first days of the invasion of Iraq and the one million men and women who have served in the 101st [Airborne]."

Concurring Judge Thapar took issue with this commentary, stating, “I concur in majority’s thorough opinion with one exception. Having never served in the military, I do no feel qualified to criticize the Army’s recruitment and leadership practices.”

Thursday, August 11, 2011

No Lengthening of Sentence to Complete Treatment Program

In United States v. Walker, 09-6498, published today, the Sixth Circuit held that the district court improperly increased Darrell Walker's sentence and remanded for resentencing. The district judge handed down an above-guidelines sentence in part because of Walker's need for rehabilitation and psychiatric treatment. Walker had twenty-nine prior convictions -- twenty-seven of which were drug-related -- and a history of mental illness.

The Sixth Circuit noted that the Supreme Court clarified in June that "a court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise promote rehabilitation." Tapia v. United States, No. 10-5400, 2011 WL 2369395, at *9 (June 16, 2011). Accordingly, the Court found Walker's sentence substantively unreasonable.

Wednesday, August 10, 2011

Statement of Reasons Basically Meaningless

In United States v. Denny, 09-6029 (August 10, 2011), the Sixth Circuit upheld an above-guidelines sentence. The key issue on appeal was whether the twenty-seven month increase was a departure or a variance. In order to affirm the sentence, the Sixth Circuit needed to find that it was a variance.

The oral sentencing was arguably ambiguous: the judge referred to the increase alternatively as "a departure" and "not a departure" and never used the word "variance." In the Statement of Reasons, however, the judge unambiguously checked the box marked "departure" and also cited to specific departure provisions under the Guidelines.

The Sixth Circuit first examined the oral sentencing transcript and determined that the judge had intended to impose a variance. As the Court noted, traditionally the Statement of Reasons can be used to divine the intent of the sentencing judge if the oral transcript has some ambiguity. In this case, however, the Court backpedaled significantly from that tradition.

The Court noted that the purpose of the Statement of Reasons is not to protect the defendant but to provide information to the Sentencing Commission. This, of course, has always been true, and the Court gave no explanation as to why this particular Statement of Reasons was so much more insignificant than those in prior cases. Attorneys should take note that this case significantly weakens the power of the Statement of Reasons.

Two more things to take away from this case : (1) in footnote 4, the Court noted that Congress is attempting to make the Statement of Reasons "a more formal document" and that, in the future, it may carry more weight; (2) going forward, watch for instances when the Statement of Reasons favors the government and see if the Sixth Circuit stays true to this holding.

Saturday, August 06, 2011

A bit more clarity about the retroactive application of SORNA

In United States v. Trent, 08-4482 (Aug. 5, 2011), the court held that for purposes of the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16901, sex offenders who “ fail[ed] to register before a particular jurisdiction had implemented SORNA” are situated similarly to “sex offenders who failed to register before SORNA was enacted,” and thus “were not required to register under SORNA until the Attorney General promulgated valid rules specifying when or whether the Act would apply to them.”

The court applied its earlier holdings in United States v. Cain, 583 F.3d 408 (6th Cir. 2010), in which it held that “SORNA did not apply retroactively of its own force [but rather] delegated to the Attorney General the sole authority to determine the retroactive application of the statute to ‘pre-enactment’ sex offenders,” and United States v. Utesch, 596 F.3d 302 (6th Cir. 2010), in which it held that SORNA’s registration requirements did not apply to sex offenders who were convicted before SORNA was enacted if the failure to register occurred before the Attorney General issued guidelines on retroactive application of SORNA.

The court explained, “The rulings of this Court in Cain and Utesch, while specifically addressing the retroactive application of SORNA only to pre-enactment sex offenders, also dictate the result in this case as to a pre-implementation sex offender . . . .”

An "Alford plea" factual basis proffer is not a valid Shepard document

In United States v. McMurray, 09-5806 (Aug. 4, 2011), the court considered whether a factual basis proffer for purposes of a “best interest plea” under North Carolina v. Alford, 400 U.S. 25 (1970), which allows a defendant “to enter a plea but . . . not . . . acknowledge guilt,” can be used to establish the nature of an offense for purposes of the Armed Career Criminal Act (“ACCA”) and Shepard v. United States, 544 U.S. 13 (2005). Here, because the court determined that the defendant’s prior conviction for aggravated assault “is not categorically a ‘violent felony’” under ACCA, it had to “examine whether the underlying documents establish that the defendant pleaded guilty to a narrowed charge that would qualify . . . .”

The government argued that “the state’s proffer of the factual basis for the plea during the plea colloquy” showed that the defendant necessarily “acted intentionally or knowingly when he committed the aggravated assault,” thereby qualifying him as an Armed Career Criminal.

The court disagreed. Although it had recently “declined to differentiate between an Alford plea and a straightforward guilty plea” in the context of determining whether an alien had been “convicted of ‘a particularly serious crime’ under the Immigration and Nationality Act,” it decided not to extend that rule to the context of a “violent felony” determination under ACCA. The court instead found that “the state’s proffer of the factual basis for [a] best-interest plea does not demonstrate that [the] plea necessarily rested on facts identifying [the] conviction as a ‘violent felony.’”

In dissent, Judge McKeague argued that “all of the categories of documents approved by Shepard for evaluating guilty pleas can be relied upon—to the same extent—when the defendant instead enters an Alford plea.”

Sixth Circuit reverses rare Michigan (federal) death sentence

In United States v. Gabrion, Nos. 02-1386/1461/1570 (Aug. 3, 2011), an appeal of a federal capital prosecution resulting in a death sentence, the court addressed a plethora of issues relating to both the guilt and sentencing phases of the defendant’s trial. The court rejected most of the arguments but reversed the death sentence and remanded for resentencing for two reasons.

First, the court held that the district court erred when it “ruled that Michigan’s longstanding policy against the death penalty could not be mentioned or admitted as a mitigating factor, or discussed with the jury in final argument during the penalty phase of the trial.” This ruling, the court held, was “inconsistent with the language of the [Federal Death Penalty] Act requiring the factfinder to consider ‘any mitigating factor’ and ‘any information relevant to a mitigating factor.’ 18 U.S.C. § 3592(a); id. § 3593(c) .” The court noted that this language “plainly includes information about Michigan’s policy against the death penalty and an argument based on the absence of proportionality in punishment when life or death is made to turn on chance.”

Second, the court found that the district court should have informed the jury that “in order to impose death they need to find ‘beyond a reasonable doubt’ the element of the death sentence that the aggravating factors outweigh the mitigating factors. . . . [A] jury’s finding that the aggravating factors outweigh the mitigating factors is an element of the death penalty and must be found beyond a reasonable doubt, the same standard constitutionally required for all other findings of fact and mixed questions of law and fact.”