Wednesday, February 27, 2013

Sixth Circuit breaks out calculators for CP restitution

The Sixth Circuit decided a major published CP restitution case today in United States v. Gamble and Crawford (two unrelated cases that presented the same issue).  Previously, in United States v. Evers, the Sixth held that all restitution awards in CP cases require the government to show that the losses were proximately caused by the defendant’s offense.  Gamble and Crawford required the Court to examine the application of the proximate cause requirement to the situation where a CP victim is claiming over $1,000,000 in restitution from a defendant who viewed the images due to the injury the victim suffered as a result of knowing that her mistreatment and humiliation are being viewed by others.

The district courts in these cases had held each defendant jointly and severally liable for the entire amount of restitution.  The Sixth Circuit, however found this solution to be unworkable, and instead suggested that the harm be apportioned among the perpetrators.  Specifically, the Court suggested that one workable solution would be to determine the pool of a victim’s provable losses that are not traceable to a single defendant and then to divide that pool among by the number of defendants convicted for possessing the victim’s image.  However, a defendant could not be held liable for harm caused prior to the date of his offense.  The Court also noted that defendants could argue for a larger pool of culpable parties by estimating the number of unconvicted possessors of the victim’s image.  Thus, if there are $1,000,000 in restitution, and 1,000 possessors of the images, then each one would have to pay $1,000 in restitution.

The concurring opinion would also have apportioned the restitution amount among the defendants, but would have done so based upon “the defendant’s comparative moral
fault” rather that just the number of offenders.

Thursday, February 21, 2013

Executing an arrest warrant at the wrong house (and lying about it to the occupants) is not reasonable

In United States v. Shaw, No. 11-6433 (Feb. 21, 2013), the Sixth Circuit ordered the suppression of evidence discovered during the unreasonable execution of an arrest warrant at the wrong address.

When Memphis police officers attempted to arrest Phyllis Brown at her home, located at 3171 Hendricks Avenue, they ran into a problem: there was no house with that address, though there were were two houses across the street from one another with addresses of 3170 Hendricks Avenue.  At this point, Judge Sutton explains in his majority opinion, "they were getting warmer."  But instead of engaging in any of the basic investigatory tactics that could have revealed which of the homes was actually 3171 Hendricks -- such as "determin[ing] which side of the street contained odd-numbered addresses," checking "city records or . . . Google Maps," or "go[ing] up to one of the houses and ask[ing] an occupant which house was 3171 Hendricks and which one was 3170 Hendricks" -- the police simply approached the house that appeared to be occupied at the time.

When the officers made contact with a female occupant of the house, they still did nothing to confirm whether they were at the correct house.  "Instead of asking the woman what the address of the house was, whether Phyllis Brown lived there or whether this was the odd-numbered side of the street," they told the woman that they "had a warrant 'for this address.'"  As it turns out, they were wrong -- they were standing on the porch of the true 3170 Hendricks.

But the woman took the officers at their word and let them into the house.  What they discovered should come as no surprise: "Instead of finding Brown, they found a lot of cocaine."

The Government offered five reasons why the entry into 3170 Hendricks Avenue was reasonable: (1) it was occupied, (2) a woman answered the door (and Phyllis Brown is a woman), (3) the woman closed the door when the officers first arrived, (4) the officers saw scales inside the house, and (5) the officers had a 50/50 chance of picking the right house.  The Sixth Circuit found none of these reasons satisfactory, whether viewed "singly or cumulatively," and held that the police had no reasonable basis to enter the defendant's house.  The court took particular exception with the police officers' false statement that they "had a warrant 'for this address,'" explaining,
The officers took a knowing roll of the dice, and perhaps it would have worked had they been right as a matter of chance about the address.  But when they were wrong, that was their problem, leaving them with having obtained entry into the wrong house based on a false pretense. An officer may not falsely tell a homeowner that he has an arrest warrant for a house, then use that falsity as the basis for obtaining entry into the house.
Once inside the house, the police officers knowingly lied to the occupants about which house they were looking for -- telling the occupants that they were trying to find 3170 Hendricks in the hopes that the occupants would then claim that they were at 3171 Hendricks.  This intentional false statement, the court found, rendered the officers' continued presence unreasonable, and required the suppression of the evidence discovered in the home.

"In short and in truth," the court explained, "[t]he officers . . . had no right to enter the house based on a falsity and no right to stay there based on a falsity. . . .  [S]o long as there is an exclusionary rule, it seems safe to say that it will apply to officers who enter and remain in a house based on false pretenses."

Judge Griffin dissented, arguing that because this case does not involve "deliberate, reckless, or grossly negligent conduct" by the police, and because "the officers shared a good-faith belief" that they were at the correct house, "this is not an appropriate case for deterrence and suppression is not warranted."

Friday, February 15, 2013

Bistline Redux

Here's a joke for you:  When is the abuse-of-discretion standard really impermissible de novo review?  When the Sixth Circuit reviews a district court's downward variance!  (*Pause for laughter*)  But seriously folks, Bistline reared its ugly head again today in Judge Moore's surprising Peppel opinion, in which the Sixth Circuit once again appears willing to give the closest scrutiny to sentences that are "too low."

In Peppel, the defendant pleaded guilty to charges related to certain fraudulent conduct as the CEO of a publicly traded company.  Although the sentencing guidelines suggested a range of 97-121 months' imprisonment, the district court instead imposed a sentence of seven days, three years of supervised release, and a $5 million fine.  It did so based on a lengthy hearing and extensive findings regarding the defendant's role in the community, his support of dependents, the severity of the non-custodial elements of the sentence, the blow to Mr. Peppel's reputation caused by a conviction, the lack of any empirical basis in the fraud guidelines, etc.

In an opinion that regularly cites to Bistline, the Sixth Circuit found that this sentence was substantively unreasonable because it (1) did not sufficiently address the need for deterrence, (2) did not sufficiently address the need to avoid sentencing disparities, and (3) placed too much emphasis on the history and characteristics of the defendant.  Despite the professed abuse-of-discretion standard, the opinion closely scrutinized the district court's decision-making in a manner resembling the de novo standard that the Eighth Circuit applied --- and that the Supreme Court rejected --- in Gall.  For example, the district court examined the "history and characteristics" of the defendant in concluding that the combination of prison time, supervised release, and a harsh fine would deter future criminal conduct.  The Sixth Circuit rejected that analysis, suggesting that such a focus on the individual defendant would potentially mean that white-collar criminals would benefit more from this than the typical drugs-and-guns defendant.

Likewise, the opinion rejected the district court's reliance on the defendant's support of his family and the community, noting that "we cannot agree that the circumstances identified by the district court justify varying downward in such a significant manner."  In other words, the court of appeals has no disagreement with the district court's fact-finding, but it is closely scrutinizing the district court's opinions of how to weigh those facts in the sentencing in light of how far the ultimate sentence varied from the guidelines range.  The court of appeals simply disagreed with the district court's conclusions: "Based on the record in this case, there is nothing to indicate that the support provided by Peppel to his family, friends, business associates, and the community is in any way unique or more substantial than any other defendant faces who faces a custodial sentence."

The silver lining of all of this quasi-de-novo review is that it may call the Supreme Court's attention to this disturbing trend (which apparently only applies in the Sixth Circuit).  The Supreme Court took a pass on Bistline the first time around, but it may reconsider now that it is clear that Bistline is not only here to stay but is also influencing other decisions.

Wednesday, February 13, 2013

Half-truths, false statements, and a sentencing "muddle"

After a quiet couple of days, the Sixth Circuit came out swinging today.

The Kurlemann opinion presents Judge Sutton's interesting analysis of the false-statement statute, 18 U.S.C. § 1014.  Mr. Kurlemann and his co-defendant engaged in a parade of horribles related to mortgage fraud, all of which led to their indictment and conviction on false-statement and bankruptcy-fraud charges.  Although the bankruptcy-fraud convictions would stand, the Sixth Circuit vacated the false-statement convictions, finding that the defendants' conduct --- which involved making certain representations regarding down payments --- amounted only to half-truths, material omissions, or concealments.  Judge Sutton explains that "§ 1014 covers 'false statements,'" but "does not generally cover misleading statements, false pretenses, omissions, schemes trickery, fraud or other types of deception."*

In so holding, the court recognized that many other criminal statutes do cover omissions and half-truths, including 18 U.S.C. §§ 1001, 1027, 1035, 1341, and others.  Although the court reaches this holding by analysis of the language of the statute itself, it has to jump over a lot of hurdles to get there, including (1) seemingly contrary Sixth Circuit precedent, (2) the fact that the Sixth Circuit pattern jury instructions appear to contradict the court's holding, and (3) the fact that the government actually presented evidence of true false statements such that the jury could have reached a legally correct verdict.  In short, the opinion represents a strong defense of statutory construction over the general presumption of district-court correctness that often plagues appeals.

But the opinion goes further!  Kurlemann's co-defendant (Mr. Duke) benefited from a government § 5K1.1 motion, but the court made certain statements at sentencing regarding not wanting to depart downward because Mr. Duke deserved an above-guidelines sentence.  What resulted, in Judge Sutton's words, was an "explanation for Duke's sentence [that] is a muddle" that effectively prevented "meaningful appellate review."  The court thus found that the sentence was procedurally unreasonable despite the fact that Mr. Duke failed to object and thus faced plain-error review.  (How many times have you described a sentence as "muddled" in an appeal brief only to be told by the court that it was perfectly clear?)

Speaking of muddled, today's opinions also suggest that district courts are failing to explain decisions related to consecutive/concurrent sentences with some frequency, as demonstrated here and here.

*In light of this opinion, we may be able to forgive the fact that Judge Sutton regularly eschews the Oxford comma.

Thursday, February 07, 2013

Tapia applies to Supervised Release violations

In United States v. Deen, the Sixth Circuit determined that the Supreme Court's ruling in Tapia, that a sentence cannot be imposed or lengthened in order to provide treatment or complete a program, applies with equal force to supervised release revocation proceedings.

The Court  reviewed the statutory language and history behind supervised release revocations, and found that "We see no difference in the quality of a defendant’s confinement when he 'serve[s] in prison all or part of'' his revoked supervised release term and his initial 'imprisonment' after conviction.  The prohibitory language of § 3582(a) interpreted in Tapia naturally encompasses a court order that requires a defendant to serve time in prison for violating a condition of supervised release."

In so finding, the Court joins the First, Fourth, Eighth, Ninth, and Tenth Circuits, who have all found the same post Tapia. 

Wednesday, February 06, 2013

Remand for Resentencing on CP case

Yesterday, the Sixth Circuit remanded Daniel Quail's case for resentencing, finding that the district court failed to make proper findings under Rule 32.  The Court found that a Rule 32 violation rendered the sentence procedurally unreasonable.

At sentencing and on appeal, Quail challenged the PSR's accusation that he had sexually abused the minor involved in child pornography offenses.  It appears from the record that although Quail raised this issue at sentencing, there was never an explicit finding either accepting or rejecting the allegation.  Further, there was evidence in the record that the district court may have relied on the controverted fact in determining the sentence.  In remanding for resentencing, the Court found "Ultimately, the district court never affirmatively ruled that Quail did or did not sexually abuse the minor, which the government concedes.  The district court’s language during sentencing is also far from clear as to whether it even considered sexual abuse.  Absent this clarity, the district court fell short of the requirements of Rule 32 and relevant case law mandating 'literal compliance . . . to ensure that defendants are sentenced on the basis of accurate information and . . . a clear record [is available] for appellate courts[.]'"

Kudos to Sumter Camp and Andrew Brandon from the FPDs office in Nashville!!!