Tuesday, August 12, 2014

Federal Prosecutors in Lexington, Kentucky: "Oops"

There is a lot to like about United States v. Noble, No. 13-6056, though I doubt many federal prosecutors share my excitement.  Particularly federal prosecutors in Lexington, Kentucky.

Courtney Noble was a passenger in a Chevrolet Tahoe driven by Marcus Adkins.  Law enforcement suspected the vehicle to be associated with a drug trafficking ring and conducted a traffic stop. Noble was "very nervous."

Adkins consented to a search of the vehicle. In order to conduct the search, police "removed Noble from the Tahoe and frisked him for weapons on the basis of Noble's nervousness, the fact that the Tahoe was suspected in a DEA investigation, and that [an officer's] training told him that drug traffickers are often armed."  Police discovered drugs, paraphernalia, and a firearm on Noble's person. Both men were charged with conspiracy, along with Dena Brooks, who was later found in a hotel room associated with the conspiracy.

Noble moved to suppress the evidence found during the frisk, and Adkins and Brooks joined the motion. The district court denied the motion to suppress, and all three defendants appealed.

The Sixth Circuit found that the search of Noble was unreasonable under the Fourth Amendment and vacated Noble's conviction.

But that left the court with "an awkward problem": neither Adkins nor Brooks can "explain[] how the frisk of Noble impacts their Fourth Amendment rights."  And that is because they obviously lack Fourth Amendment "standing" to object to the unreasonable search of Noble.  Their motions to suppress had no merit.

But it was their lucky day.

At both the district court and in its brief on appeal, prosecutors neglected to argue that Adkins and Brooks lacked standing to object to the search of Noble's person.  Thus, in a letter to the court after oral argument, the appellate chief of their office ("and to its credit") acknowledged that the government had "waived" the issue for appeal.

Facing an open question in the Sixth Circuit and a split of authority elsewhere, the court "join[ed] the majority of circuits to have considered this issue" and held that "the government may forfeit or waive its objection" to Fourth Amendment standing.  The court explained,
we would allow the government to raise an objection to a defendant's Fourth Amendment standing for the first time on appeal, provided that the government can show that the defendant plainly lacked standing and that our failure to recognize it would "seriously affect[] the fairness, integrity or public reputation of judicial proceedings." However, if the government fails to raise the issue in its opening brief on appeal, then the objection is waived. 
Here, because the government missed the issue of Fourth Amendment standing not only at the district court but also in the opening brief on appeal, both Adkins and Brooks got a windfall. Their convictions were vacated just like Noble's.

Judge Moore wrote the opinion and Judge Tarnow joined. Judge Kethledge dissented from the Fourth Amendment analysis alone, finding the "question . . . close" but ultimately concluding that the police were reasonable to ensure that Noble was not armed during the search of the vehicle.

Alleyne Error Not Harmless

In United States v. Hackett, No. 12-2248, the Sixth Circuit rejected the government's argument that a violation of Alleyne v. United States, 133 S.Ct. 2151 (2013), was harmless because the defendant admitted the facts giving rise to the greater mandatory minimum.

The defendant was charged in an indictment with using or carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A), a crime carrying a five-year mandatory minimum sentence. At trial, he admitted to firing a handgun but disputed his motive for doing so. He was convicted.  Instead of sentencing him to the five-year mandatory minimum charged in the indictment, the district court sentenced him under Section 924(c)(1)(A)(iii), which raises the mandatory minimum to ten years "if the firearm is discharged."

There is no serious dispute that the sentence violated Alleyne, since the defendant's mandatory minimum sentence was increased on the basis of facts not found by the jury.  But the government nevertheless maintained that the error was harmless, given the defendant's admission to discharging the firearm.  Put differently, there is no question that the jury would have convicted the defendant of the ten-year offense if it had been given the option.  The problem with this argument, the court found, is that it would allow for a constructive amendment to the indictment, which can never be harmless.

Household Chores ≠ Forced Labor

United States v. Toviave, No. 13-1441, is a case about prosecutorial discretion -- and overreach.  Toviave appears to be an unsavory character, but his conduct didn't actually violate the federal statute under which he was charged.  Happily, Judges Rogers (writing), Sutton, and Suhrheinrich do not trust "the discretion of prosecutors" to protect law abiding citizens from similarly misplaced prosecutions.

The essential facts are as follows:
Toviave brought four young relatives from Togo to live with him in Michigan. After they arrived, Toviave made the children cook, clean, and do the laundry. He also occasionally made the children babysit for his girlfriend and relatives. Toviave would beat the children if they misbehaved or failed to follow one of Toviave’s many rules. 
Federal prosecutors in Detroit charged Toviave with visa fraud, mail fraud, and forced labor in violation of 18 U.S.C. § 1589. Toviave pled guilty to the fraud charges but went to trial on the forced labor charges and was convicted.

While calling the defendant's conduct "deplorable" and "reprehensible," the Sixth Circuit found that prosecutors were wrong to make a federal case out of what appeared to be nothing more than child abuse --"a state crime, but not a federal crime."

The court explained,
The government’s interpretation of 18 U.S.C. § 1589 would make a federal crime of the exercise of these innocuous, widely accepted parental rights. Take a hypothetical parent who requires his child to take out the garbage, make his bed, and mow the lawn. The child is quarrelsome and occasionally refuses to do his chores. In response, the child’s parent sternly warns the child, and if the child still refuses, spanks him. The child then goes about doing his chores. There is no principled way to distinguish between that sort of hypothetical labor and what Toviave made the children do in this case. 
The court drew heavily from Bond v. United States, 134 S. Ct. 2077 (2014), in which the Supreme Court "recently reemphasized that we should be cautious in inferring Congressional intent to criminalize activity traditionally regulated by the states."  In Bond, the government argued that the defendant's conduct -- which amounted to "garden-variety assault" between spouses, albeit with a chemical weapon -- fell within the "very broad scope of the chemical weapon statute."  But due to the "deeply serious consequences of adopting such a boundless reading" of the statute, the Supreme Court disagreed and vacated the conviction.  The Sixth Circuit found "[t]he reasoning of the Supreme Court appears to apply directly to Toviave's case."

Friday, August 01, 2014

One day sentence reversed

Defendant Musgrave was a CPA who became involved in a tire recycling company.  Unfortunately for Musgrave, he picked the wrong partner, and as a result, the company went under. Musgrave lost a significant amount of cash, and so brought in the FBI, the SEC and Australian authorities to investigate his partner.  As a result, Musgrave himself was indicated on ten counts, including bank fraud and wire fraud.  His partner was also indicted, pled guilty, and received probation.  Musgrave went to trial and was convicted.

At sentencing, the court found the advisory Guidelines to be 57 to 71 months incarceration, but imposed a sentence of one day incarceration, citing his lack of criminal history, his own losses in the company, his decades of service to the community, the fact that the Guidelines overstated his culpability, and the restitution that would be imposed.  The Sixth Circuit reversed this sentence, finding that the district court considered impermissible factors in imposing the sentence, such as the civil losses incurred, the loss of his CPA license, and the fact that his felony conviction would be a part of his record.  The Court indicated that because these matters were not "consequences of his sentence" they could not be considered.  Further, the Court indicated that the district court failed to give adequate consideration to general deterrence, and that incarceration is favored for the type of offenses for which Musgrave was convicted.  The full opinion is here.