Monday, April 22, 2013

Sixth Circuit again reverses unjustified supervised release conditions

In a pair of recent decisions, the Sixth Circuit has sharply restricted the authority of district courts to impose supervised release conditions without adequate justification. The first was United States v. Inman, 666 F.3d 1001, 1003 (6th Cir. 2012), a child pornography case in which the court reversed the lifetime term of supervision and a number of special conditions involving drugs, alcohol, and “any device capable of creating pictures or videos,” because the district court had failed to explain its reasoning. The second was United States v. Maxwell, 483 F. App’x 233, 238 (6th Cir. 2012), a SORNA case in which the court relied on Inman to reverse a similar set of “highly restrictive special conditions” because the “sentencing suffer[ed] from nearly identical shortcomings.”

In United States v. Dotson, No. 12-5662 (April 22, 2013), the court continued this apparent trend, “emphasiz[ing] that requiring the district court to adequately state on the record the rationale for the conditions selected aids in assuring that those chosen are applicable to that particular defendant and thus are more likely to encourage his rehabilitation.”

Like Inman, Dotson involved a child pornography offense, which is likely the reason why the district court imposed supervised release conditions prohibiting “exposure to any pornographic or sexually oriented materials,” “sexually oriented telephone numbers or computer services,” and even a “blanket 20-year ban” on internet access.

While the Sixth Circuit acknowledged that these restrictions (or variations on them) might be justifiable in cases such as this, it reversed due to the “dearth of explanation” about why the district court deemed them necessary. Given the “disagreement among the circuits” about the appropriateness of internet bans, and given “the undisputed observation that computers, cell phones, and Internet access play a fundamental role in the modern age” including “in the workplace and educational institutions,” the court found that the district court had failed to justify its imposition of such restrictive conditions. The court even rejected the condition requiring substance abuse monitoring and testing, because although the defendant had “previously sold drugs in order to ‘get by,’” there is “simply nothing in the record indicating whether Dotson has previously abused drugs and would be at risk for future abuse.”

Even under plain error review, the court found that “a remand is necessary so the district court can reconsider several of the conditions imposed on Dotson’s supervised release.”

While the court did not rule out the possibility that the district court could reimpose the same conditions with adequate reasoning, it suggested at least one of the conditions would be difficult to justify in the absence of reasonable accommodations: “On remand, it may be helpful for the district court to ‘consider the ubiquitous nature of the internet as a medium of information, commerce, and communication as well as the availability of filtering software that could allow [Dotson’s] internet activity to be monitored and/or restricted.’”

(In a separate portion of the opinion, the court affirmed redaction of certain portions of the defendant’s incriminating statement, “which illustrated that Dotson had a rough upbringing and had been sexually abused as a child; that he considered his girlfriend to be a ‘blessing’ and had intended to marry her prior to encountering financial difficulties; and his concern that the victim knew he was exploiting her.” Because these portions of the statement “did not make any fact of consequence related to these statutory offenses more or less probable than it would have been without them,” the court agreed with the district court that they were irrelevant and excludable at trial.)

Thursday, April 18, 2013

A rose by any other name establishes probable cause?

The limits of the Leon good-faith exception were expanded ever wider in today's opinion in United States v. Rose.  There, several minors told officers that Mr. Rose had sexually assaulted them in his bedroom and shown them child pornography.  Officers prepared a warrant to search 709 Elberon Ave., describing the house and the fact that the house had the name "Rose" over the doorbell.  The warrant stated that Mr. Rose was the subject of the search.  The warrant affidavit, however, failed to include the property's address, and failed to establish any nexus between Mr. Rose and the property being searched.  In other words, the affidavit linked Mr. Rose to evidence of criminal activity (the sexual assaults, the pornography), but it failed to state that any such criminal activity occurred at the address or even that Mr. Rose lived at that address.

The Sixth Circuit had no trouble finding that the failure to establish the requisite nexus meant that the affidavit did not establish probable cause.  Ever since Leon, however, defense attorneys have known that the inquiry does not end there.  Under the good-faith exception, the court asserted that the affidavit was not "bare-bones," and, indeed, the only problem with it was that it "fails to connect Rose with 709 Elberon Ave."  That's not a small problem, especially where the officers preparing the warrant affidavit are the same ones executing it (not entirely clear here) and thus would have reason to know of the deficiency.  The court, however, suggests that failing to establish any nexus between the criminal activity and the address to be searched is more akin to "clerical error." 

While the court takes pains to situate the holding within the specific facts of this case, nexus claims will seem all the more daunting after Rose.

Monday, April 15, 2013

Speedy-Trial Win!

Here's another big win from last week.

US v. Heshelman, Nos. 10-1049/1223 (6th Cir. April 12, 2013) (not for publication).

Panel of Judges Clay, Gibbons, and White. 

Dist ct said that an approximately three-year delay b/t indictment and trial not a speedy-trial violation.  COA reversed. 

Money laundering and fraud.

Indictment filed in 2006 (shortly before S of L expired) and was sealed, so gov could continue investigating.  But gov didn't do much---just kept a journal of the defendant's contacts with the alleged victims. 

Defendant one in Switzerland.  Issue with potential extradition.  Defendant got in touch with FBI agent b/c knew of investigation, which was hampering his business.  Agent did not inform defendant of indictment, which had been filed at that point.  Gov finally requested extradition from Switzerland in 2009.  Trial commenced about four months later.  Jury convicted on all counts.

A second defendant was told by FBI of warrant for his arrest in '08; defendant said he wanted to cooperate.  Pleaded guilty about six months later.

First defendant complained of speedy-trial violation b/c of three-year delay in arrest and trial.  Second defendant complained b/c gov knew of his whereabouts, but decided not to proceed with his trial until first defendant arrested. 


* Length of delay and defendant's assertion of rights.  Trial delay of a year or more generally presumed prejudicial and triggers consideration of other factors.  Gov conceded this presumption and that appellant asserted speedy-trial rights in timely manner. 

* Reason for delay.  Gov conceded it followed a "wait-and-see" course and sought to arrest the first defendant when the latter returned to the US to see family.  Extradition difficult and gov wanted complete control of prosecution.  But gov obligated to act diligently, even when a defendant is in a foreign country.  Here, actively seeking extradition would not have been futile: there was an extradition treaty with Switzerland.  Gov just didn't pursue extradition b/c didn't want Switzerland to place conditions on the extradition.  But gov made only one attempt to see what conditions might be.  Switzerland had been responsive.  But gov just waited for the defendant's return to the US.  Can't wait indefinitely.  Defendant didn't flee the jurisdiction to avoid the charges; he had lived in Switzerland before the alleged scheme began. 

* Prejudice.  Presumption here, and gov didn't rebut. 

First defendant's speedy-trial rights were violated.

As to second defendant:

* Gov could have arrested him at any time.  Gov conceded presumptive prejudice.  Also conceded timely assertion of rights. 

* Once indictment unsealed and warrant for arrest issued, defendant two turned himself in. 

* Gov also admitted that it delayed b/c if defendant two were tried alone he might prevail by just blaming defendant one.  Gov interest in trying alleged co-conspirators together does not automatically justify delay.  And gov did not delay while diligently searching for defendant one, as already discussed.  Gov was just delaying extradition of defendant one. 

Second defendant's speedy-trial rights violated. 

Reversed and remanded with instructions to dismiss indictment with prejudice. 

Concurrence by Judge Clay:

Agrees that speedy-trial rights violated.  Looks more closely at reason for delay.  What is standard of review?  Considerable deference, according to SCOTUS. . . .  Like clear-error review. 

Wow.  Couple cases last week that should be noted.  Got a little excited about them and jumped out of the blogging “line” to post them here.  Hope that’s OK with my fellow bloggers.

Here’s US v. Grigsby, No. 11-3736 (6th Cir. April 11, 2013) (for publication).

Panel of Judges Merritt, McKeague, and Stranch.

Dist ct entered order allowing gov to involuntarily medicate a defendant who had been diagnosed as paranoid schizophrenic to restore competency.  Given the circumstances, the COA reversed the order and found that the defendant’s liberty interest in avoiding involuntary medication outweighed the government’s interest in prosecution.

Defendant had been charged with three counts of unarmed bank robbery. 

Defendant was middle aged, homeless, and diagnosed with paranoid schizophrenia.  Incompetent to stand trial.  Refused oral medicines for schizophrenia.  Not gravely disabled or a danger to himself or others or to the safe functioning of the facility, so no involuntary medication under Washington v. Harper, 494 U.S. 210 (1990).  So gov sought involuntary medication under Sell.  Got order.  Interlocutory appeal by defendant followed. 

Key points:

·         There was an important gov interest in bringing defendant to trial.  Bank robbery is serious. 

·         But the inquiry is “fact intensive.” 

·       Potential for lengthy civil commitment tempers gov’s interest in trial.  Two potential courses for commitment and both should be considered: under 18 USC 4243 (not guilty b/c insane) and 4246 (hospitalization after time for release). 

·         Defendant might be found not guilty by reason of insanity, even if competence is restored.  Undermines gov’s interest in prosecution. 

·         If involuntarily medicated, the defendant would still be in custody for about the same period as the advisory guideline range.  Lessens gov interest in prosecution. 

·         Involuntary medication should be rare. 

·         Side effects of meds could affect fairness of trial.  Defendant might have to stand trial and be subject to involuntary movements, the inability to stay still, a loss of dignified carriage in front of the jury, and difficulties assisting counsel, all caused by the meds.  Side effects can be irreversible.

COA reviews several cases and compares and distinguishes them.

COA points out that “victory” for either party may be a double-edged sword. . . .

Case remanded with anticipation of civil-commitment proceedings. 

Judge McKeague dissented.  Disagrees with the special-circumstances analysis.  Civil commitment is speculative.  Defendant unlikely to prevail on insanity defense.  Disagrees with majority’s discussion of potential sentence and potential side effects.

Wednesday, April 10, 2013

When the Fair Sentencing Act is Not Fair- FSA Does not Apply to 18 U.S.C. section 3582 petitions

For the first time, the Sixth Circuit has addressed the scope and applicability of the Fair Sentencing Act in an 18 U.S.C. section 3582 petition.  The short answer - it does not apply.

In United States v. Hammond, Case No. 12-5522, the defendant was originally sentenced in 2008.  In 2012, pursuant to 18 U.S.C. section 3582, the defendant requested application of the newly revised Sentencing Guidelines as they related to crack cocaine sentences.  The district court found that the new Guidelines did indeed apply, and that the sentence should be reduced.  However, the defendant's mandatory minimum, under pre-FSA statutes, was 120 months.  The court therefore reduced the sentence from 121 to 120 months. 

On appeal, the defendant argued that the FSA should apply, and cited to the Supreme Court decision in Dorsey v. United States. -- U.S. --, 132 S.Ct. 2321 (2012)  The Court agreed Dorsey controlled, but not in the manner suggested by the defense.  Rather, because the mandatory minimum range had "not subsequently been lowered by the Sentencing Commission", that change in law fell outside the scope of 18 U.S.C. section 3582, and the district court was correct in refusing to apply the new mandatory minimum.  The Court noted that Dorsey itself suggested that because the Hammond was "already sentenced", that the FSA would not apply.