Thursday, March 29, 2012

SORNA upheld under Ex Post Facto and Commerce Clause challenges

Whither the "kitchen sink" memo?  When SORNA was enacted in 2006, defense counsel came up with numerous constitutional, statutory, administrative and other challenges to the statute.  For a while, the Sixth Circuit did not rule on many of these challenges (as they granted relief on initial enactment grounds).  But in two recent cases, much of the "kitchen sink" defense memo has now been disposed of.

Today, the Court in United States v. Coleman 12a0085p.06  held that imposition of SORNA on a defendant whose sex conviction pre-dated the act does not violate the Ex Post Facto clause.  The Court relied on the Court's earlier decision in United States v. Felts, 12a0073p.06 , which found that "SORNA provides for a conviction for failing to register; it does not increase the punishment for the past conviction." 

The Court also held that SORNA was a proper application of Congress's Commerce Clause power.  the Court held that "SORNA’s jurisdictional element, coupled with its purpose, creates the requisite nexus to the use of the channels of interstate commerce."  The Court further found (as to the second Lopez prong) that "it cannot be said that SORNA’s focus on Coleman’s failure to register as a sex offender so decouples the regulated conduct from the instrumentalities of interstate commerce that it becomes unconstitutional."

The previously mentioned Felts was decided on March 12.  In Felts, the Court struck down challenges to SORNA: (1) where the state in which the defendant was arrested had not yet implemented SORNA, (2) under the non-delegation clause, and (3) under a state "commandeering" claim under the Tenth Amendment.

Wednesday, March 21, 2012

A Good Suppression Case for Defenders

McCraney, published today, is a good decision for defenders in which the Sixth Circuit upheld the suppression of a gun. The automobile stop was higly pretextual -- failure to dim high-beams and a vague assertion of "reaching down."

Most importantly, the Court showed that Arizona v. Gant, 556, U.S. 332 (2009) still has some teeth. The vehicle search that discovered the firearm was conducted with the unarrested defendants outside of the car. This case is worth a read if you have a client with any related issues.

Thursday, March 15, 2012

Just a very quick note on a habeas opinion issued yesterday that deals with the Confrontation Clause and CrawfordPeak v. Webb, No. 09-5977 (6th Cir. Mar. 14, 2012) (for publication).

Panel of Judges Boggs (delivered opinion of Court), Merritt (joined Judge Boggs, and delivered a separate concurrence), and Clay (dissented).
Murder case out of Kentucky.  State played a recording of a co-defendant's custodial statement without calling that co-defendant as a witness.  Defense objected.  The co-defendant was available to be called.   
The petitioner received no relief from the Court.
Conclusions and Reasoning:
* The Supreme Court has "recently made abundantly clear that the review granted by AEDPA is even more constricted than AEDPA’s plain language already suggests. As long as 'fairminded jurists could disagree on the correctness of the state court’s decision, then relief is precluded under AEDPA."
* If it was possible for a fairminded jurist to conclude that the state court’s rationale comported with the holding in Crawford, the Court had to deny relief.  The Court acknowledged that this is a "very high standard."
* Crawford requires unavailability and a prior chance to cross-examine for the use of testimonial hearsay.  When the co-defendant's statement was played at trial, that co-defendant was available and there had been no prior opportunity for the petitioner/defendant to cross-examine him. If the petitioner/defendant was not confronted with the co-defendant, playing the statement was a violation of Crawford
* The crux of the issue was "whether making a witness available to be called is confrontation, or whether confrontation instead requires the witness to take the stand at the very time, according to Supreme Court precedent that was clearly established when [the petitioner's] conviction became final."

* The question is open as to whether confrontation requires the witness to actually take the stand. Crawford seems to equate confrontation with cross-examination, which would have required the state to put the co-defendant on the stand when playing the tape.

* But the Supreme Court "had not, at the time [the petitioner's] conviction became final, clearly held that the ability to cross-examine immediately is required by the Confrontation Clause." So it was "not unreasonable to believe, as did at least three justices on the Kentucky Supreme Court, as well as the trial-court judge, that confrontation only requires that a declarant be made available in the courtroom for a criminal defendant to call during his own case. It can be argued that this ability is equivalent to cross-examination."

* The Court was "not convinced that the opportunity to call a witness, as opposed to the opportunity to immediately cross-examine a witness, satisfies the Confrontation Clause. However, we are convinced that there is a possibility for fairminded disagreement on the issue, and under clear, and increasingly strident, Supreme Court precedent, that is all that is required to affirm."

Judge Merritt concurred:
* He agreed on the "AEDPA problem because in the recent case of Greene v. Fisher, 132 S. Ct. 38 (2011), a unanimous Supreme Court observed that the AEDPA standard 'is difficultto meet, because the purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice system, and not as a means of error correction.'"
* He also agreed that "on the merits of the confrontation question: it is doubtful that a witness who appears in court ready for the defendant’s examination can be said to meet the 'unavailable' element of the test under the Sixth Amendment."

Judge Clay dissented:

* The pettion's "Sixth Amendment Confrontation Clause right was irrefutably violated when his co-conspirator’s testimonial, hearsay confession accusing [the petitioner] as the triggerman and ringleader of a robbery and murder was played to the jury in lieu of the co-conspirator’s live testimony."
* He concluded: "Contrary to the majority’s holding, if the plain language of the Sixth Amendment is not clearly established federal law, then nothing is."

* The Supreme Court has never concluded "that the prosecution may admit a testimonial, hearsay accusation against the defendant if the declarant is seated in a pew in the back of the courtroom, but is allegedly willing to testify. The Supreme Court has similarly never held that a defendant waives his Confrontation Clause right if he fails to call an available accuser to the stand and cure the prosecution’s violation of his Confrontation Clause right. There is but one way for the prosecution to admit into evidence a testimonial, hearsay accusation against a defendant: establish unavailability of the declarant and show that the defendant had a prior opportunity to cross-examine that witness."

* He finds that "As a matter of policy, if we permit the prosecution to introduce accusations merely by having potential witnesses present in the courtroom rather than by producing them as actual witnesses for purposes of confrontation, the prosecution has only to gain and the defendant has only to lose."
* The Fifth Amendment right against self-incrimination may also be implicated if a defendant is forced to call a witness who may incriminate the defendant, if the defendant must do so in order to avail himself of his Confrontation Clause right.

* He finds that "the Kentucky Supreme Court plurality was objectively unreasonable in its application of the Sixth Amendment, and its decision was contrary to clearly established federal law."

Thursday, March 08, 2012


The Sixth Circuit issued two published opinions yesterday, found here and here. Each has a nugget of useful law interpretation. Both remind us of a simple word that attorneys just don't seem to say enough:


There are tactical reasons not to object. And sometimes, there is no good faith basis for an objection. But defense counsel need to be guarding their record and preserving issues for appeal. That is done by objecting.

As United States v. Osborne, 09-5276, reminds us, if you want to preserve your arguments for a motion to suppress, you MUST object to the magistrate judge's report and recommendations. Failure to file an objection will prompt the district court "to conclude... [defendant] forfeited any objection to the recommendation and... deny his motion to suppress."

Also, if you have a problem with the court giving - or not giving - a particular jury instruction, you MUST object.

United States v. Jones, 09-6549, reminds us if you do not object to the presentence report, you accept all of the factual allegations contained in it. Furthermore, if you don't object to your sentence in court, later claims will be reviewed for plain error.

The legal interpretation nuggets:

Osborne - the within 1000' of a school must be proven to the jury beyond a reasonable doubt.

Jones - great discussion of the analysis to use when looking at old convictions for ACCA purposes.

Thursday, March 01, 2012

A little habeas clarity

Practitioners who work on § 2254 claims are often frustrated by a paucity of bright-line rules to provide guidance, especially bright-line rules that are favorable to habeas petitioners. The Perkins opinion, out today, offers a rare bit of clarity, thanks to some excellent pro bono work by the good folks at Jones Day.

The issue: AEDPA’s statute of limitations provides a statutory exception for credible claims of actual innocence, but equitable tolling of the statute usually requires a showing of reasonable diligence. Does a habeas petitioner with a credible claim of actual innocence also have to show reasonable diligence in pursuing his or her claim?

The answer: no.

I would write more here, but for once no additional analysis, caveats, or disclaimers are necessary.*

*Ha ha, just kidding. This will raise all kinds of issues related to what exactly is a credible claim of actual innocence, and Mr. Perkins has a long way to go before he demonstrates that he has one. But for now, let’s all just enjoy this brief moment in the sun, ok?

More Bad News on the C.P. Front

The Sixth Circuit continued its dispiriting trend of sentencing cases related to child pornography with the Robinson case on Monday, yet another case that (1) negates what appears to be hard work at sentencing by defense counsel, and (2) admonishes district courts that exercise their discretion to vary from the Guidelines.

Defense counsel put on multiple test results demonstrating that the defendant was not inclined toward contact offenses with children. The district court was moved by these results, along with the fact that the defendant would have to register as a sex offender for the rest of his life, the fact that he would always have a felony on his record, the fact that he voluntarily sought counseling, and several other factors. The district court varied downward from a Guidelines range of 78 to 97 months to a sentence of one day in prison and five years of supervised release. The Sixth Circuit found this to be substantively unreasonable. A few stray observations:

1. The most lasting effect of this opinion is likely to be the Court’s conclusion that a defendant’s requirement to register as a sex offender for the rest of his life cannot be considered as part of § 3553(a)’s “deterrence” factor because it is part of the conviction, not the sentence. This sort of hyper-technical reasoning seems oddly divorced from a world in which cities and states force sex offenders into homeless camps or under overpasses on islands because there is nowhere else they are legally allowed to live.

2. Can a district court consider a defendant's likelihood to commit contact offenses or not? If not, someone ought to tell AUSA's across the country. They have a habit of raising the fear of contact offenses in sentencing hearings.

3. The opinion does acknowledge that the 2-level enhancement for using a computer “now occurs in almost every case,” but the opinion does not have the same critique of the enhancement for sadomasochistic content, which also occurs in almost every case. There is some interesting discussion of the enhancement for the number of images possessed, and the opinion suggests that a defendant who received thousands of images at one time might be less culpable than one who — like this defendant — had collected the same number over a long period of time.

4. If you still have trouble distinguishing between substantive and procedural unreasonableness, this opinion is unlikely to be of assistance.