Wednesday, June 27, 2012

Sixth Circuit reverses conviction where district court refused to instruct the jury on the justification defense

In an unpublished decision today, United States v. Clark, No. 11-5347, the Sixth Circuit reversed the defendant's felon-in-possession conviction on the ground that the district court erred by refusing to instruct the jury on the justification defense.

The court explained, "Clark's prosecution stemmed from an evening in Paris, Tennessee, that went terribly wrong." As bad as things turned out, they could have gone much worse.

Clark was at a dance club with his girlfriend when another man grabbed her on the buttocks. Clark confronted the man, a confrontation ensued, and everybody was ushered outside. The man then told his friends to "get the car ready" and approached Clark with his hand inside his jacket. Clark ducked behind a car as shots were fired, one of which whizzed by clark's neck. Clark then ran back inside the dance club, where the DJ lifted his shirt, revealed a gun, and told Clark to take it for his protection. Clark then left the club again, and was trying to flee the area when the police arrived and arrested him.

Clark was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). At his trial, he admitted the above facts and the existence of a prior felony.

 The only issue was whether he was justified to possess the handgun. At the close of the evidence, however, the district court refused to instruct the jury on the justification defense and instead told jurors to disregard testimony relating to self defense or justification.

Explaining that an affirmative defense merely needs to "find[] some support in the evidence and in the law" in order for a defendant to be entitled to a jury instruction, and that "[t]his burden is not a heavy one," the Sixth Circuit reversed.

The court emphasized that Clark merely had to present "some support" for each of the elements of a justification defense, and that his evidence "may even be 'weak or of doubtful credibility.'" Those elements are as follows:
(1) "that defendant was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury";
(2) "that defendant had not recklessly or negligently placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct"'
(3) "that defendant had no reasonable legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm";
(4) "that a direct causal relationship may be reasonably anticipated between the criminal action taken and the avoidance of the threatened harm";
(5) that defendant "did not maintain the illegal conduct any longer than absolutely necessary."
Because there was "some support" for each of these elements, the justification instruction was required.

Thursday, June 21, 2012

Supreme Court Update -- FSA, Apprendi, & Crawford

Three significant criminal cases from the Supreme Court this week:

Fair Sentencing Act applies to post-Act sentencing of pre-Act offenders in pipeline cases

The 5-4 decision of Dorsey v. United States, holds the FSA's new mandatory minimums apply to pipeline cases involving sentences for crack cocaine imposed after the Act (August 3, 2010) for pre-Act crimes: "That is the Act's 'plain import' or 'fair implication.'"

The full opinion can be found here.

Apprendi applies to criminal fines

The 6-3 decision of Southern Union Co. v. United States, holds Apprendi v. NJ applies to the imposition of criminal fines.

The full opinion can be found here.

Supreme Court takes a bite out of Crawford

In William v. Illinois, a deeply divided 5-4 decision, the Supreme Court muddied the waters of Crawford, with the narrowest ruling setting forth an unclear distinction between which forensic reports are “formal,” i.e. testimonial, or “informal,” i.e. non-testimonial.

For an in-depth analysis, check out the SCOTUSblog here.

The full 98-page opinion can be found here.

Tuesday, June 19, 2012

Wal-Mart is a Single Victim

In United States v. Stubblefield, published today, the Sixth Circuit found a two-level enhancement for multiple victims under U.S.S.G. § 2B1.1(b)(2) was procedurally unreasonable because Wal-Mart is a single victim. While multiple false checks were cashed at various Cleveland Wal-Mart locations, each location is automatically reimbursed for the loss by the Wal-Mart Corporation. Only the single corporation suffered actual loss and is therefore the only victim.

The full opinion is available here.

Congratulations to Vanessa Malone here at the Northern District of Ohio!

Monday, June 18, 2012

Supreme Court reverses 6th Circuit’s prosecutorial misconduct test

In prior AEDPA cases, the Sixth Circuit used a two-part test for prosecutorial misconduct claims: (1) whether the prosecutor’s remarks are improper, and if so, (2) whether the remarks were flagrant, which the Sixth Circuit determined using four factors.

In Parker v. Matthews, 567 U.S. __ (June 11, 2012) (available here), the Supreme Court described the Sixth Circuit’s two-part prosecutor misconduct test as mere circuit law, and not appropriate for assessing the "highly generalized standard for evaluating claims of prosecutorial misconduct set forth in Darden v. Waignwright [477 U.S. 168 (1986)] ..."

To determine issues of prosecutorial misconduct, the Supreme Court uses the Darden fair trail test: "a prosecutor’s improper comments will be held to violate the Constitution only if they 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" The Supreme Court explains, "the Darden standard is a very general one, leaving courts "more leeway . . . in reaching outcomes in case-by-case determinations."

Wednesday, June 06, 2012

District Court Commits No Less Than 5 Errors in Applying the Guidelines

The Sixth Circuit issued an unpublished decision in United States v. Godsey today in which the district court committed a slew of mistakes in applying the guidelines.  The district court incorrectly failed to decrease the offense level by three for acceptance of responsibility, failed to decrease the offense level due to the FSA-based guidelines amendments, incorrectly held that an upward departure due to the insufficiency of the criminal history category disqualified the defendant for safety valve relief, and erred in ungrouping the three counts under USSG § 3D1.2(d).  On top of all that, the Sixth Circuit found that the aforementioned upward departure in criminal history category was improperly applied because it was based on prior non-similar arrests, most of which the district court said it would disregard.  Despite this plethora of errors, the Sixth still denied the defendant’s request to be resentenced by a different Judge.

Tuesday, June 05, 2012

On or About and Constructive Amendments and Judicial Notice, Oh My!


The Sixth released an interesting published decision today in United States v. Ferguson.  The defendant apparently had thousands of cp pictures on his computer.  He attempted to delete them all on April 4, 2008, but missed 14 of them.  He was then indicted for possession of those 14 images “on or about” April 10, 2008.  The defendant argued that because he thought he deleted the pictures on April 4, he did not “knowingly” possess them on April 10.  The court held that the variance of dates was still close enough to satisfy the “on or about” language in the indictment.

Next, the court held that it could take judicial notice of Shepard documents on appeal in order to determine the nature of a prior conviction.  The defendant argued that the indictment in his state conviction was unhelpful in determining what offense he pled no contest to because Michigan court rules permit a defendant to plead to an offense not charged in the indictment when entering a plea of no-contest.  The court found this argument unpersuasive in this case because other Shepard documents showed that the defendant pled to offenses charged in the indictment.  But it wouldn’t hurt to keep this rule in mind if your are looking at state court Shepard documents from Michigan in future cases.

Sixth Not Convinced by Cop’s Framing of the Facts


In United States v. Johnson, an unpublished case today, the Sixth Circuit, while admitting it was a close case, held by a 2-1 vote that the following facts did not add up to reasonable suspicion to extend a traffic stop once the citation was written:

1) nervousness
2) defendant looked back and forth between the two police officers
3) vehicle had a container of industrial-strength degreaser
4) defendant said he planned to go on a three-night vacation with a woman he had not met in person but vehicle had two plastic bags of clothing instead of luggage
5) rental contract indicated that the vehicle was not supposed to be driven in the state where defendant was stopped or his destination state
6) defendant had a criminal history

The police officer also said the defendant had a “bladed” stance indicating a fight or flight mode, but the majority reviewed the videotape and determined that this was not the case.  Finally, the majority pointed out that the officer interpreted the defendant’s behavior in a way that would make anyone seem suspicious:  “Had Johnson averted his eyes and slouched, he might have been considered evasive. Because he stood straight and maintained eye contact, Officer Duggan considered him aggressive. Johnson simply could not win.”  It turns out Johnson did manage to win, at the Sixth Circuit.