Monday, August 27, 2012

Implicit waiver of the right to counsel

In United States v. Coles, No. 11-1281 (Aug. 27, 2012), the Sixth Circuit found no reversible error in the district court’s failure to "engage in an exact model inquiry as set forth in the Bench Book for United States District Judges" before finding that the defendant had elected to represent himself at trial and waived his right to counsel.

The court acknowledged that in United States v. McDowell, 814 F.2d 245, 249-50 (6th Cir. 1987), it had "invoke[d] [its] supervisory powers" to require that whenever an accused indicates a wish to represent himself in criminal proceedings, the district court must engage in the model inquiry from the Bench Book "or one covering the same substantive points," and must make "an express finding that the accused has made a knowing and voluntary waiver of counsel . . . ."

Here, the district court did not engage in this required colloquy, but instead simply found that the defendant had implicitly requested to represent himself by firing four separate appointed lawyers in spite of the court’s repeated warnings that the inability to work with counsel would be treated as an intentional tactic to delay trial and a desire to proceed pro se. Thus, "[t]he district court was not faced with an accused who wished to represent himself, but rather with an accused who effectively waived his right to counsel by his conduct."

Because the district court had "advised Coles on several occasions with respect to the difficulties in self-representation," and because the fourth appointed attorney "was available throughout the trial as stand-by counsel" and "assisted . . . during the sentencing proceedings," the Sixth Circuit "s[aw] no reason in the context of our supervisory powers to instruct district court judges how to proceed when a defendant has, by his conduct, waived his right to counsel," and instead "l[eft] it to district court judges to determine how best to deal with a defendant, who by his or her conduct, has waived the right to counsel."

Subjective Intent and Threats

In United States v. Jeffries, No. 11-5722 (Aug. 27, 2012), the Sixth Circuit addressed whether a conviction under the federal threat statute, 18 U.S.C. § 875(c), requires proof of the defendant’s subjective intent to threaten. The case arose after the defendant posted to YouTube a video of himself performing an original song about his daughter and the judge presiding over her custody proceedings, in which he tells the judge (among many other similar things), "Take my child and I’ll take your life."

The parties agreed that the statute applies only to "objectively real" threats, meaning those for which "a reasonable person would have perceived . . . a true threat . . . ." And there did not seem to be any genuine dispute that under prior Sixth Circuit cases, a defendant’s state of mind is irrelevant under Section 875(c). But the defendant argued that the Supreme Court’s decision in Virginia v. Black, 538 U.S. 343 (2003)—which struck down a provision of the Virginia cross burning statute that treated "any cross burning as prima facie evidence of intent to intimidate"—was tantamount to a First Amendment requirement that "all communicative-threat laws" must "contain a subjective-threat element."

The Sixth Circuit disagreed, finding that Black "does not work the sea change that Jeffries proposes" and does not upset prior Sixth Circuit law addressing Section 875(c): "The reasonable-person standard winnows out protected speech because, instead of ignoring context, it forces jurors to examine the circumstances in which a statement is made . . . . A reasonable listener understands that a gangster growling ‘I’d like to sew your mouth shut’ to a recalcitrant debtor carries a different connotation from the impression left when a candidate uses those same words during a political debate. And a reasonable listener knows that the words ‘I’ll tear your head off’ mean something different when uttered by a professional football player from when uttered by a serial killer."

The court also rejected the defendant’s sufficiency of the evidence argument. While allowing that this appears to be "the first reported case of a successful § 875(c) prosecution arising from a song or video," the court found that "the statute covers ‘any threat,’ making no distinction between threats delivered orally . . . or in writing . . . , by video or by song, in oldfashioned ways or in the most up-to-date. . . . [O]ne cannot duck § 875(c) merely by delivering the threat in verse or by dressing it up with political (and protected) attacks on the legal system."

In addition to authoring the majority opinion, Judge Sutton wrote a separate "dubitante" opinion explaining that "Sixth Circuit precedent compels this interpretation of § 875(c)" and that Black "does not require a different interpretation," but "wonder[ing] whether our initial decisions in this area (and those of other courts) have read the statute the right way from the outset." He relied primarily on the fact that "[e]very relevant definition of the noun ‘threat’ or the verb ‘threaten[]’ . . . includes an intent component," and yet "[c]onspicuously missing from any of these dictionaries is an objective definition . . . ." Thus, the text alone seems to demand a subjective intent standard. Moreover, "Allowing prosecutors to convict without proof of intent reduces culpability on the all-important element of the crime to negligence." This rarity in criminal law should depend on "express congressional directive" rather than "some judicially manufactured deus ex machina . . . ."

Tuesday, August 21, 2012

World’s Most Ineffectual Bank Robber: “I have a gun” is not always a threat of death

In a split published decision, United States v. Wooten, Circuit Judge Moore found the statement “I have a gun” during a bank robbery did not support a two-level threat-of-death enhancement under § 2B3.1(b)(2)(F). The enhancement does not solely depend on the defendant's words. A sentencing court must also consider the context and the overall circumstances in which the statement occurred. These factors include: the statements, body language, overall demeanor, tone of voice, and mode of communication. Although the threat of death is an objective standard, a sentencing court can also consider whether the actual teller felt threatened when determining if a reasonable person would have been afraid under the same circumstances.

Mr. Wooten committed the bank robbery at issue by placing both hands on the counter and softly saying “I am going to rob you” in a nonchalant manner. When the teller hesitated due to his doubts of Mr. Wooten’s sincerity, Mr. Wooten stated “I have a gun. Give me your money,” at which point the teller handed over cash. There was no demand note, mask, disguise, or assertive commands. The teller testified he did not feel threatened during the robbery. In fact, Mr. Wooten was so non-threatening he left empty-handed earlier that day in an attempted bank robbery when the teller merely laughed at him. Mr. Wooten had no criminal history, stated he wanted to be caught, and committed the robbery because “he was just tired of living in his car and he was running out of money.” The opinion stresses this is a rare case and in the majority of cases the statement “I have a gun” is enough to warrant the enhancement.

The dissent states “I can think of just one reason why a bank robber would tell a bank teller he has a gun: to show he means business.”

Tuesday, August 07, 2012

How Many Ways can the Government Punish You for One Act? A Bunch.

Today the Sixth Circuit decided United States v. Morgan, a case where a drug dealer shot at police who were executing a warrant on his apartment.  He was charged with possessing marijuana with intent to distribute, possession of a firearm by an unlawful user of drugs, and 924(c) for his use of the gun.  The district court enhanced the defendant’s 924(c) count to a 10 year mandatory minimum because he fired the gun, the court applied a 2 year upward departure to the 924(c) count apparently because the defendant fired the gun at the police, and then the court applied a cross-reference on the unlawful firearm possession because firing the gun towards the police constituted attempted murder.  One act equals two charges and three enhancements.

The Sixth Circuit granted some relief by holding that it would be impermissible double counting for the district court to base both the attempted murder enhancement and the 924(c) upward departure on the fact that the defendant shot the gun towards the police.  The Sixth Circuit also took issue with the district court’s application of the attempted murder cross-reference based on the court’s conclusion that the defendant was “able to form the intent” to murder, as opposed to actually finding that the defendant did form that intent.  Under federal law, attempted murder requires that the defendant actually form the intent to kill.

On a final note, the Sixth Circuit made a rather interesting use of the Bostic question.  Normally, if the court asks the Bostic question and the defense attorney does not raise a procedural reasonableness objection, that objection is waived.  In Morgan, the Court held that if the district court raises an issue sua sponte, there is no need to respond to the Bostic question.  The Court reasoned that the purpose of the Bostic question is to bring an issue to the district court’s attention, and if the district court raised the issue on its own, there is no need to bring that issue to the court’s attention.