Wednesday, November 30, 2011

3 Year Government Delay = Speedy Trial Violation

In United States v. Ferreira today, the Sixth Circuit held that a 35 month delay caused by gross government negligence in the face of the defendant’s pro se assertion of his speedy trial rights violated the defendant’s speedy trial rights and necessitated dismissing the indictment with prejudice. A previous published opinion said that 5 years was enough, a previous unpublished opinion said that 3 and a half years was enough and a previous published opinion said that 2 years was not enough. So the line is moving in the right direction.

The issue in this case was whether to apply a presumption of prejudice to a 35 month government delay. Speedy trial analysis is easy when the government acts in bad faith or the delay causes identifiable prejudice to the defendant (e.g. a key defense witness dies or exculpatory evidence is lost or destroyed). The problem is that in the real world, cases rarely involve such easy determinations. Instead, cases most often seem to involve government negligence combined with a fear of unidentifiable prejudice. As the Supreme Court put it, “time’s erosion of exculpatory evidence and testimony can rarely be shown.” In other words, how do you prove what a witness would have remembered had the trial happened five years ago? How do you prove what evidence the defense team might have turned up? The answer is that you have to presume prejudice when the delay is long enough, and in this Circuit, 35 months is apparently long enough, at least when the delay is solely the government’s fault.

The dissent takes issue with this test, correctly pointing out that it has turned into a numbers game where various circuits require anywhere from 2 to 5 years for the presumption. The dissent would require that “before applying the presumption, we should at least ask whether there is reason to believe that the defendant has suffered significant, albeit unidentifiable, prejudice as a result of the government’s delay in bringing him to trial.” What the dissent fails to explain is how a defendant could possibly present evidence of an unidentifiable fact.

Monday, November 28, 2011

Judges Disagree Over Substantive Reasonableness Claims, but Affirm Anyway

The Sixth Circuit decided United States v. Jowers today (disclosure: this case came out of our office). In Jowers, the defendant was convicted for being a felon in possession of a firearm and received a 2 level enhancement under U.S.S.G. § 2K2.1(b)(1), which applies when the offense involves 3 to 7 firearms. The defendant’s mother purchased two firearms “in his presence and with his assistance,” after he became a felon. However, before the defendant became a felon, his father owned 2 firearms which his father stored in the defendant’s room. After the defendant became a felon and his father passed away, the defendant negligently failed to remove the firearms from his room.

Jowers argued that his sentence was substantively unreasonable due to the unwarranted sentencing disparity between himself and others who received the 2K2.1(b)(1) enhancement: i.e., in the mine run case, a defendant who receives this enhancement will intentionally possess 3 to 7 firearms but this defendant intentionally possessed 2 firearms and negligently possessed 2 firearms. Defendants should not receive the same punishment for such disparate offenses and Jowers was therefore entitled to a downward variance.

The majority opinion was about 1 page long and did not engage in any analysis of the merit of Jowers’s argument. Instead, the court took issue with the defendant’s failure to cite other cases in which a defendant had won a substantive reasonableness appeal due to application of 2K2.1(b)(1) to a defendant who negligently possessed enough firearms to qualify for that enhancement. The opinion concluded that Jowers, “makes no argument that would assist us in differentiating his specific situation from other specific situations, and so his argument based on ‘disparity’ is not well taken.”

The concurrence agreed that Jowers argument should fail (for many of the same reasons substantive reasonableness arguments of defendants usually fail), but disagreed with the short shrift given to the defendant’s argument by the majority. “I disagree with the assertion in the majority opinion that Defendant ‘makes no argument that would assist us in differentiating his specific situation from other specific situations, and so his argument based on ‘disparity’ is not well taken.’ I believe that Defendant does make such an argument.” The concurrence also took the majority to task for discouraging defendants from making novel arguments:

“I also note my disagreement with the majority opinion’s emphasis on Defendant’s failure to ‘explain by reference to case citation or other reference to how, when, or where defendants in a similar situation in other cases received a more favorable sentence omitting the two-level enhancement.’ Although Defendant did not cite to any cases where a defendant received a downward variance because he only ‘negligently’ possessed firearms in violation of § 922(g), the failure to demonstrate the existence of similarly-situated defendants who were successful in other cases is not a bar to bringing such an argument. Indeed, if that were the case, no defendant could ever raise a new or novel argument in challenging his conviction or sentence.”

The moral of the story? Defense attorneys should not give up raising new arguments that their clients’ sentences are substantively unreasonable. At least some Judges will consider your arguments.

Whoo Hoo! Big News: SCOTUS Grants Cert on FSA Pipeline-Cases Issues

The Supreme Court has granted cert in two FSA "pipeline" cases to resolve the circuit split over whether or not the FSA applies to defendants whose conduct pre-dated the FSA, but who were sentenced after the FSA was enacted

The cases are Hill v. United States, No. 11-5721, and Dorsey v. United States, 11-5683.

Question presented in Dorsey:

"Did the Seventh Circuit err when, in conflict with the First and Eleventh Circuits, it held that the Fair Sentencing Act of 2010 does not apply to all defendants sentenced after its enactment?"

Dovetailing with the FSA theme, the Sixth Circuit issued its decision in United States v. Thigpen, No. 10-3127 (6th Cir. Nov. 21, 2011) (unpublished), last week.  Court again followed Carradine and denied FSA relief to the defendant, who was sentenced on January 28, 2010.  The Court did state that the defendant "was properly sentenced under the law applicable at the time his crimes were committed."  This language is broad, but given the defendant's sentencing date, it is dicta in "'pipeline" cases (defendants sentenced after the FSA was enacted, whose offenses pre-dated the FSA).

Thursday, November 10, 2011

No stay of execution for Reginald Brooks

Yesterday, the Sixth Circuit denied a stay of execution for Reginald Brooks. You can find their opinion here.

Those of you who do capital habeas work will recognize the ruling as a fairly standard walk through 60(b)(6) issues. Those of you who, like me, are unfamiliar with capital habeas work should give it a look just to get a succinct description of the standards for stays of execution and review of habeas petitions in cases where a habeas petition has previously been filed and ruled upon.

What it all boils down to is this: a petition needs to be timely. It cannot relitigate issues already decided ("law of the case"). 60(b) is used to correct procedural errors in the appeal, not litigate the merits of the appeal. Ineffective assistance of habeas counsel cannot be raised in a 60(b) petition.

Props to Alan Rossman of the Federal Defender in Cleveland, Ohio, and Michael Benza for their continued efforts to keep Mr. Brooks alive.

Wednesday, November 09, 2011

Sixth Circuit reversed . . . again

On November 7, the Supreme Court reversed the Sixth Circuit's decision in Dixon v. Houck, in which the Court had overturned the conviction and death sentence of the defendant based upon Miranda violations.  The Supreme Court dealt unusually harshly with the Sixth Circuit in a per curium opinion, finding, for example, that  "according to the Sixth Circuit, the Miranda decision itself clearly established that police could not speak to Dixon on November 9, because on November 4 Dixon had refused to speak to police without his lawyer. That is plainly wrong." (emphasis added)  The Supreme Court dismissed each of the grounds for reversal set forth in the Sixth Circuit's opinion in short, order, and seemed to re-affirm the deference given to state court opinions, finding "Because no precedent of this Court required Ohio to do more, the Sixth Circuit was without authority to overturn the reasoned judgment of the State’s highest court."

The Supreme Court's opinion can be found here.