Tuesday, December 15, 2015

Judge White: TN definition of "habitation" may make Aggravated Burglary non-generic

Today's published opinion in United States v. Priddy, No. 15-5136, is most exciting for Judge White's partial concurrence.

First, the meat of the case. Mr. Priddy was charged with two counts of felon in possession. He has prior Tennessee convictions that include three for Aggravated Burglary, one for Robbery, and two for Burglary. Mr. Priddy wanted his attorney to objection to his ACCA classification. Counsel noted at sentencing, "I think he falls into the Armed Career Criminal category" and "the [prior convictions] that give rise to the application of [the ACCA enhancement] are three aggravated burglaries, then two burglaries of a business or of some other thing that was not a residence, and a robbery."

The Sixth Circuit discussed the difference between waiting an issue and forfeiting an issue and concluded, "... where the defendant has 'explicitly agreed' that a particular guideline calculation or enhancement applies to his sentence, any challenge to that enhancement on appeal is waived." Normally, the Sixth "does not review" waived issues, but decided to give Mr. Priddy "the benefit of the doubt" and conduct plain error analysis of his claims.

The Sixth Circuit then described Tennessee Aggravated Burglary: "[a]ggravated burglary occurs when an individual enters a habitation 'without effective consent of the property owner' and ... intends to commit a felony." It pointed to its finding in United States v. Nance, 481 F.3d 882 (6th Cir. 2007) that Tennessee aggravated burglary is a generic burglary for ACCA purposes.

What Nance and the majority in Priddy both failed to do, however, is look to Tennessee's definition of "habitation" in TN Stat 39-14-401:
a) any structure, including buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons,
b) "a self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant, and
c) includes each separately secured or occupied portion of the structure or vehicle and each structure appurtenant to or connected with the structure or vehicle.

In her concurrence, Judge White noted this "expansive definition" "likely renders [Tennessee's] aggravated burglary statute broader than Taylor's definition of generic burglary." She questioned the continued validity of Nance and pointed to alternate holdings in Ozier and Lara.

Whether Tennessee's Aggravated Burglary statute is divisible, and how far it is divisible, is still somewhat in debate. The Sixth Circuit has held the statute indivisible and has held it divisible. Contrary to the Sixth's holding in Lara, there is argument to be made that, though "habitation" has a list of alternate situations, a sentencing court should not delve into those facts, as a jury would not need to find what sort of habitation was burgled in order to find a defendant guilty of Aggravated Burglary.

The plain error analysis in this case limits its use for the position that Tennessee Aggravated Burglary is a predicate offense for ACCA. Judge White's concurrence indicates the "habitation" issue is still a live issue that counsel should be aware of.

Tuesday, December 01, 2015

Habeas Law: How to Count to Two

The Anti-Terrorism and Effective Death Penalty Act, passed in the wake of the bombing of the Murrah Federal Building in Oklahoma City, imposes a labyrinthine set of rules that must be followed by those seeking federal habeas relief.  In particular, these rules strongly disfavor the filing of "second" or "successive" habeas petitions.  Ordinarily, an inmate who files a second or successive petition must first seek the permission of a court of appeals to do so, and the appellate court may give its permission only under limited circumstances.

Things get hairier, though, when an inmate files a habeas petition, the petition is fully litigated, the state court subsequently enters some new judgment, and the inmate seeks to file another petition.  Is this new petition, premised on the new judgment but raising claims directed at the original conviction, a first or second petition?

That's what today's decision in King v. Morgan seeks to answer.

In 2004, DeLawrence King was convicted of two counts of murder and one count of felonious assault.  After exhausting his state court remedies, he ultimately sought federal habeas relief, which was denied.  (The Sixth Circuit affirmed that denial.)  King then filed a motion for resentencing in the state trial court, arguing that in imposing its sentence, that court had erred in the imposition of post-release control.  The state court granted the motion and re-sentenced King, creating a new judgment.  So King filed a new habeas petition, challenging both the new sentence and the original conviction.

In an opinion by Judge Sutton {joined by Judges Boggs and White), the Sixth Circuit holds that King's claims regarding his original conviction should be treated as being part of a first petition for habeas relief.   The panel notes that in so holding, it joins the majority of circuit courts to consider the issue.  (The lone outlier is the Seventh Circuit, which reached the opposite conclusion in a 2-1 decision.)  The Supreme Court's 2010 decision in Magwood v. Patterson, which requires that a petition that challenges only the new judgment in circumstances similar to King's be treated as a first petition, weighs heavily in the Sixth Circuit's reasoning; the Magwood court took a "judgment-based approach" rather than a "claims-based approach" to figure out the first-or-second question.  Also, Judge Sutton recounts several practical concerns that favor treating such petitions as first petitions.

One other nugget:  the opinion specifically praises King's appointed counsel, Erin Murphy, for her work on the case.  According to her bio, Murphy was a law clerk to Judge Sykes (7th Circuit) and Chief Justice Roberts following her magna cum graduation from Georgetown Law.  (The name may be familiar to SCOTUS-watchers, as she successfully argued on behalf of the RNC in McCutcheon v. FEC.)  It's not often that a pro se habeas litigant lucks into such high-powered appellate counsel.

Sunday, November 29, 2015

Jury Need Not Be Instructed on Regulatory Violations

The Sixth Circuit recently found no plain error where a jury was not instructed on the regulations underlying an element of an offense. In United States v. Lechner, the Government charged that the defendant failed to appropriately store explosives.  The third element of that offense is that the explosives were stored “in a manner not in conformity with regulations promulgated by the Attorney General.” 18 U.S.C. § 842(j). The case demonstrates, once again, the need for contemporaneous objections at the district courts.

In the case, the district court failed to instruct the jury in regard to the regulations. The Government successfully argued on appeal that such instructions were unnecessary (and certainly not plain error) when the meaning of the regulations was offered to the jury through expert testimony. In Lechner’s trial, the Government introduced uncontroverted expert testimony regarding Lochner’s non-compliant storage practices. Although Lochner argued that such testimony amounted only to a government agent’s interpretation of the regulations (as opposed to an authoritative judicial pronouncement), the Sixth Circuit found that if there was any substantive dispute regarding the meaning of the regulations, then such dispute could have been uncovered through cross-examination (“Lechner’s counsel may have been reticent to do so because drawing the jury’s attention to the text of the regulations would not have worked in Lechner’s favor.”). Hence, the Court found no plain error.

In a curious aside, the case is also interesting for its citation to the Tenth Amendment, which has essentially become "meaningless rhetoric" since the administration of Franklin Roosevelt. See Garcia v. San Antonio Transit Authority, 469 U.S. 528 (1985) (Powell, J., dissenting). The Sixth Circuit cites the Amendment (the one most widely called for in the state ratifying conventions and once described by Jefferson as the “foundation of the Constitution”), then demonstrates how the modern construction of (for example) the Commerce Clause has destroyed the intent of the Amendment. 

Monday, November 02, 2015

Managing property is not the same as managing the enterprise

In United States v. Christian, 13-6530, the Sixth Circuit clarified application of the management sentencing enhancement under USSG § 3B1.1. Christian was part of a four-member truck theft ring, that stole one Mayflower moving truck as well as several 18-wheelers carrying loads of tires. The tires were kept in a storage unit rented in Mr. Christian's girlfriend's name. Co-defendant Lanton had a key to the unit itself, but Christian had the code to get into the facility.

The government argued the 2-point enhancement under § 3B1.1(c) applied because Christian controlled access to the stolen property; that he "managed" the assets of the criminal enterprise. The Sixth Circuit disagreed. Another co-conspirator described Lanton as "the head man over the Mayflower trailer load." Lanton had a buyer for the stolen tires, and only Lanton received payment from that buyer. Lanton told Christian to rent the storage unit, and to do so in his girlfriend's name. Lanton gave Christian 125 tires from one of the thefts. Lanton also convinced Christian to execute an affidavit exculpating Lanton.

In its opinion, the Sixth Circuit walked through many of the § 3B1.1(c) considerations: Christian did not recruit others to join the ring. He did not help plan any of the thefts. He lacked special expertise on which the truck theft ring depended. He did not provide information that facilitated the offense. He did not issue orders to any group member.

The Sixth also took care to discuss the difference between a guideline sentencing enhancement and a departure. A sentencing court is required to accurately calculate the guideline range before considering whether to depart. While definite numbers are associated with sentencing enhancements, departures have no such recommendations. Here, the district court erred in calculating the guideline, and so must be reversed.

Also of interest, the Court gave very clear remand instructions: the government did not ask for a second chance to support the § 3B1.1 enhancement on remand, and had told the district court it had no other evidence to support it. Christian was to be resentenced using a guideline range not based on the § 3B1.1 adjustment. The Court expressly left open debate on the amount-of-loss adjustment as well as any other argument Christian might raise at sentencing.

Tuesday, October 20, 2015

What Is Relevant Conduct in a Child Pornography Case?

Today, the Sixth Circuit considered what constitutes "relevant conduct" under Guideline 1B1.3(a) in a child pornography case. In United States v. Hodge, the Court addressed the two-level reduction under Guideline 2G2.2(b)(1), which applies when "the defendant's conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor" with no intent "to traffic in, or distribute, such material." The Hodge court affirmed the sentence, holding the reduction did not apply because of other relevant conduct that suggested distribution.

The defendant in Hodge was secretly videotaping his minor step-daughter while she was naked. When the step-daughter uncovered the camera and the police arrived with a search warrant, they uncovered child pornography on Mr. Hodge's computer. That child pornography, which was exclusively made up of images downloaded from the Internet, served as the basis for the two counts in Mr. Hodge's case.

Mr. Hodge argued the video taping of his step-daughter was not a part of the indicted conduct and did not meet the Guideline definition of relevant conduct. Specifically, he argued under United States v. Fowler, 216 F.3d 459, 460-61 (5th Cir. 2000), receipt requires downloading during a discrete moment in time. The district court found Mr. Hodge's possession of pornography continued through the entire period he was both downloading child pornography and taping his step-daughter.

In analyzing the issue, the Hodge Court surveyed the case law on the definition of "relevant" under Guideline 1B1.3(a)(2) and relied heavily on relevancy requiring the conduct to be a criminal offense - even if it is never prosecuted. The Hodge Court also noted that relevant conduct "must bear some logical relationship to the offense of conviction." While the videos were not lascivious, they did constitute an attempted sexual exploitation of a minor -  a crime.

Further, Hodge analyzed the "trailing clause" of 1B1.3(a)(1), which requires the relevant conduct to occur "during the commission of the offense of conviction." The Court explained Guideline 1B1.3 applies to "groupable" offenses and that the district court should consider other acts that were a part of the same course of conduct, scheme, or plan. The decision also identified some ambiguity as to whether the trailing clause applied to both the (a)(1) and (a)(2) sections.

Ultimately, the Hodge Court held the enhancement was properly applied, because the video taping occurred "during the commission of the offense of conviction" and was part of a common purpose and scheme.

Thursday, September 24, 2015

Pre- and post-Miranda confessions take center stage

It's been another busy (and, at times, discouraging) week for published criminal-law opinions in the Sixth Circuit. The court dipped into legal esoterica in the Olive opinion, addressing at length whether one of two money-laundering counts should have merged in light of United States v. Santos, 553 U.S. 507 (2008). (The court concluded that there was a "merger problem," but that, under Santos, the consequences were not "markedly increased" by virtue of the error, so no harm no foul.) The court also reversed the grant of sentencing-phase ineffective-assistance-of-counsel relief in a death-penalty case in Morris, once again demonstrating that it believes that AEDPA all but precludes relief even for objectively egregious IAC claims.

Perhaps most relevant to the defense bar is the opinion in United States v. Ray, in which the court took a hard look at the relationship between pre- and post-Miranda confessions, wading into a circuit split on the subject.

Based on a (later-contested) search warrant, officers discovered marijuana and firearms in Mr. Ray's home. According to Ray, the officers threatened to arrest Ray's live-in girlfriend --- the mother of his 14-year-old son --- and make his child a ward of the state if he did not talk to them. Prior to receiving Miranda warnings, Ray took responsibility for all of the contraband in the house. An hour and a half later, Ray made statements at the police station that were consistent with his pre-Miranda statements, but the district court refused to suppress those statements. The district court did not consider the Supreme Court's opinion in Missouri v. Seibert, 542 U.S. 600 (2004), which addressed such questions. This failure alone was enough to warrant reversal, but the Sixth Circuit had to address what test to apply from Seibert's sorely divided opinion. Despite contrary precedent from other circuits, the court determined that because the plurality and dissent each received four votes, none of the opinions in Seibert "announce[d] a binding rule of law." Instead, the Sixth Circuit would have to formulate its own test. In doing so, it adopted the multi-factor test announced by the Seibert plurality, under which the admissibility of such statements "hinges on whether a 'reasonable person in the suspect's shoes could have seen the station house questioning as a new and distinct experience, [and whether] the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission.'" The court further detailed the factors to be considered in that analysis.

The opinion is also highly citable with respect to what evidence provides proof that a firearm was possessed "in furtherance of a drug trafficking crime" under 18 U.S.C. 924(c). Ray had three firearms, and the court held that two of them would not support such a conviction despite close proximity to drugs. One was an unloaded shotgun propped behind a door in the same room where drugs were found (with shotgun shells found in the same room), and another was a rifle in a room with no drugs. The court held that neither was "strategically located so that it is quickly and easily available for use." Unfortunately for Ray, a third weapon did suffice to meet the "in furtherance of" test, but this case may provide ammunition (pun intended) for defendants in future cases.

Tuesday, September 15, 2015

Week of September 8-11

Based on last week's rulings, I have three cases to detail:

1) In United States v. Callahan et. al, Case No. 14-3771, the Sixth Circuit affirmed the conviction and sentences for a case relating to forced labor allegations. The defendants went to trial, were convicted, and filed post-conviction motions. The first issue related to a jurisdictional and statutory interpretation issue. Specifically, the appellants sought relief under Bond v. United States, a recent Supreme Court case regarding the reach of federal statutes. Last year, in United States v. Toviave, the Sixth Circuit extended Bond's holding in a forced labor case, holding Toviave's conduct was not the type of conduct Congress meant to regulate and criminalize. In the instant case, the Sixth Circuit distinguished Toviave, finding the appellants conduct was more consistent with the aims of the statute (18 USC 1589). The Court concluded "a rational trier of fact could conclude that S.E. provided labor or services." p. 12. The Court's conclusion makes it seem that the appellate claim was on a weight of the evidence, or sufficiency claim, but Bond/Toviave go directly to the reach of the statute in a more jurisdictional and federalism standpoint. So, the Court's conclusion leaves us wondering.
There are also some interesting jury instruction issues regarding the kidnapping instruction and the quantum of proof required by the instructions.

2) United States v. Brown, No. 13-1761. This case presents an interesting set of circumstances, as law enforcement used an informant to set up a drug buy from the appellant. This led to Appellant being arrested during a traffic stop. Warrants were subsequently obtained for his house and cell phones, leading to additional evidence. On appeal, Brown challenged the denial of his motions to suppress. The Court discussed the requirement that a search warrant must have a nexus to the evidence sought and the place searched. p. 8. The Court looked at the fact that the affidavit to search the home contained no evidence that Brown sold drugs from the home or used the residence for storing drugs. The court stated it was a "close question" as to whether this met the demands of Fourth Amendment, but because the affidavit contained enough of a connection. The Court relied entirely on the fact Brown's car was registered to his home, and therefore there was a fair probability his home would contain evidence of the crime. p. 12. The court's analysis of the facts is pretty short considering the legal analysis that precedes it; the court's awareness that this is a "close question" should give us some solace (but not Mr. Brown), but it really seems like a case of the tail wagging the dog. Judge Clay writes a dissent on this issue detailing the lack of evidence supporting a just affidavit.
If you want to bone up on your evidence caselaw regarding authentication, there is also a discussion on whether a "drug ledger" was properly admitted. The court held its contents were not hearsay, and an agent involved in the search could testify to authenticate it.

3) McCarley v. Kelly, No. 12-3825. This is a 2254 habeas case. The petitioner was convicted in state court of aggravated murder. McCarley's girlfriend was killed in 1992, and police claimed her 3 year old son identified McCarley. The child was taken to a child psychologist to elicit similar statements days later. Twelve years later, McCarley was indicated. He was found guilty, but an error vacated the jury's first verdict. In 2007, a second jury found him guilty and he was sentenced to life. He proceeded with habeas, which was initially denied by the district court. The Sixth Circuit reversed and ordered a conditional writ. In June, the Supreme Court vacated that opinion based on David v. Ayala. On remand, the district court again denied relief. In the instant appeal, the Sixth Circuit reversed and remanded, again ordering a conditional writ.
Now that all the procedural history is out of the way, here's the merits. The Court held that the admission of the child psychologist's testimony was an unreasonable application of clearly established federal law. Specifically, the testimony violated the confrontation clause and Crawford v. Washington. At trial, one of the lieutenants was permitted to read letters between himself and the psychologist detailing the results of the evaluation of the child. The Court found this was "testimonial" evidence, under Crawford and Davis v. Washington. The Court declared the child psychologist was acting more as a police interrogator than a private counselor, and thus an agent of law enforcement. p. 13. The Court relied on the trial testimony in which law enforcement stated the psychologist's "main reason" for the sessions with the child were to "get information" police could not get from the child to identify the suspect for the investigation. p. 14. The court held this was classic testimonial evidence and therefore the state court unreasonable applied Crawford/Davis. The Court then provided a detailed analysis of the remaining testimony, showing "the importance" of the testimony of the psychologist both in the case-in-chief and closing argument. Because the psychologist's testimony was the "keystone" of the state's case, admission of the admission was not harmless error and therefore required relief.
This case provides a very thorough analysis if you have a habeas issue regarding confrontation.

Tuesday, September 01, 2015

Objections to facts in the PSR: this is not just a child porn case

Bottom line for child porn offenses:

United States v. Cover, 14-3641 holds that the depiction of an 11- or 12-year-old child penetrated orally by an adult penis is not per se a depiction of sadistic or masochistic conduct. There was no evidence in the record that the image was violent or depicted the infliction of physical or psychological pain. The Sixth ruled this holding was not in conflict with United States v. Groenendal, 557 F.3d 419 (6th Cir. 2009) ("penetration of a pre-pubescent child by an adult male constitutes inherently sadistic conduct") because an 11- or 12-year-old child is not necessarily pre-pubescent. The Court also noted, "As sad as it is, there is no denying that many eighth-graders these days voluntarily engage in oral sex, presumably without experiencing pain."

IMPORTANT discussion for anyone filing Shepard-based objections to Presentence Reports regarding ACCA, Career Offender, 2K2.1, etc. etc. etc.:

Remember, a "district court is allowed to accept as true all factual allegations in a presentence report to which the defendant does not object." United States v. Bondurant, 146 F. App'x 762, 763 (6th Cir. 2005) (quoting United States v. Levy, 250 F.3d 1015, 1018 (6th Cir. 2001). In Cover, the Sixth reminds us the district court can rely on facts in the PSR unless there is a "dispute." "To create a factual dispute, a defendant 'must produce some evidence that calls the reliability or correctness of the alleged facts into question' - a burden of production that requires 'more than bare denial.'" Cover at *2(citing United States v. Lang, 333 F.3d 678, 681 (6th Cir. 2003).

It would be insufficient for prosecution or defense to file an objection that merely stated, "defendant/government objects to the information contained in paragraph 30" or "objects... because it is not true." For instance, in the context of information that might ultimately be used in a Shepard analysis, the objection should contain a discussion about how the probation officer preparing the report is allowed to glean information from non-Shepard sources and those have not been deemed reliable enough for a Shepard analysis, as well as an offense-specific discussion of what the Shepard documents do show about a particular offense.

State restoration of rights does NOT restore federal gun rights

In a lengthy opinion today, the Sixth Circuit ruled that even though a FEDERAL felon had their Tennessee state civil rights fully restored - including specifically his right to have a firearm - his federal right to firearms had not been restored. The majority in Walker v. United States, 14-5703 applied the test set out in United States v. Cassidy, 899 F.2d 543, 550 (6th Cir. 1990): in determining whether a person's civil rights were restored, the court should look at the right to vote, the right to sit on a jury, and the right to seek and hold public office.

Mr. Walker's right to seek and hold public office was never lost - even felons can run - so it was never restored. You cannot restore that which you have not lost in the first place.

Mr. Walker's right to sit on a federal jury was assumed for the sake of argument to have been lost and then restored, but one restoration is not enough.

Mr. Walker's right to vote was not restored in any way that directly addressed his personal felony conviction, or the status of all felons, and so does not "count" under this analysis.

So, no restoration and restoration without proper consideration are problematic.

Judge Clay filed a dissent.

The case is very dense and a good read to see just how detailed a statutory interpretation the Sixth is willing to go through.

Monday, August 31, 2015

Evading arrest not a predicate for ACCA

Very quick, unpublished opinion today in United States v. Odell Holder, 14-5666. Case was remanded by the Supreme Court for evaluation under Johnson. Sixth held that evading arrest is not a predicate offense.

Friday, August 21, 2015

Summons Is Not "Intervening Arrest" for Career-Offender Purposes

In United States v. Powell, No. 14-3932 (Aug. 19, 2015), the Sixth Circuit clarified application of the career-offender provision under the Sentencing Guidelines.

Powell argued that the district court erred in classifying him as a career offender because the court mistakenly counted two of his prior convictions separately.

The Guidelines explain that “prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest.” U.S.S.G. § 4A1.2(a)(2). “If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Count any prior sentence covered by (A) or (B) as a single sentence.” Id.

The district court relied on pair of assault convictions t
o sentence Powell as a career offender. But Powell merely received a summons for the first of these charges before being arrested two months later on the second charge, and he was sentenced for both crimes on the same day. The Sixth Circuit sided with an en banc Ninth Circuit decision, and dicta from other circuits, to decide that an intervening summons or citation does not constitute “an intervening arrest” under § 4A1.2(a)(2). The Sixth Circuit declined to follow a contrary decision from the Seventh Circuit.

On another important note, Powell had waived most of his appellate rights as part of his plea agreement, but preserved his ability to challenge the determination of his criminal-history category. This exception, the Sixth Circuit decided, allowed an appellate challenge to the career-offender determination, even though it affected both Powell's criminal history and offense level. Even more interesting, the court's holding ultimately did not change Powell's criminal history category: his score dropped from 20 to 15, leaving him in
 category VI. But the Sixth Circuit nonetheless remanded because of the change in offense level.

Tuesday, August 11, 2015

"Legal Mail" to Correctional Facility Includes Mail From Prospective Attorney

Today's sole published opinion, ACLU Fund of Michigan v. County of Livingston is not a criminal case.  But it seemed appropriate to blog about it here because of the interest it may hold for criminal practitioners in the Sixth Circuit.

Here are the facts:  the Livingston County (MI) jail has a very restrictive mail policy.  Anything that's not legal mail has to be on a postcard.  The jail administrator in charge of determining what constitutes legal mail thinks that only mail from a court and mail from an attorney to a current client constitutes legal mail.  So the ACLU sent several letters to Livingston County inmates offering to help them challenge the county's policy.  The letters were in enveloped marked "legal mail" and were signed by an attorney.  But since Livingston County didn't consider them to be "legal mail," they were never delivered.  The ACLU filed suit, seeking injunctive relief.  The district court granted a preliminary injunction, and the defendants sought interlocutory review.

In its opinion, the court (Judges Moore, Siler, and Stranch comprised the panel, with Judge Moore writing) held that the jail's overly restrictive policy likely constituted violations of both the First and Fourteenth Amendments.  The court's discussion at the bottom of page 10 of the opinion is particularly instructive:  the court notes that legal services organizations like the ACLU must be able to send confidential communication prior to initiating legal action, and that both the inmate and the attorney have a strong interest in keeping communications confidential during the investigate stages of a legal matter.  That should be particularly helpful for attorneys considering taking on postconviction or habeas matters on behalf of an inmate.
the A

Sunday, August 09, 2015

Crimes of Violence Determined Under Shepard

The Sixth Circuit determined that Tennessee’s aggravated burglary statute is divisible and, further, may constitute a “crime of violence.” In United States v. Ozier, the Court used the modified categorical approach to determine whether the defendant committed a breed of aggravated burglary that constitutes a crime of violence under Section 4B1.2(a)(2) of the United States Sentencing Guidelines. The decision demonstrates the continued viability of Descamps and Shepard when determining career offender status (and potentially the ACCA) following Johnsonv. United States.

In Ozier, the District Court concluded that Ozier had committed one of the enumerated offenses (burglary of a dwelling) in Section 4B1.2(a)(2).  In conducting its analysis, the Sixth Circuit first determined (under Descamps) that Tennessee’s aggravated burglary statute is divisible. Having established that the statute is divisible, the Court then analyzed the plea colloquy underlying the state conviction (under Shepard), which confirmed the District Court’s conclusion. Because the underlying crime fell within the enumerated offenses, the Court declined to consider whether Johnson invalidated an analysis under the residual clause.

The case is United States v. Ozier, 14-6439 (6th Cir. August 5, 2015).

Thursday, August 06, 2015

Insufficient Evidence: Failing to Connect the Defendant with the Crime

The Sixth Circuit reversed a child pornography conviction because the Government failed to present sufficient evidence. In United States v. Lowe, police officers found child pornography on a computer at the defendant’s (James Lowe’s) home. But three people lived at the residence before the police search and the Court found that the Government failed to adduce evidence sufficient for any rational juror to conclude that it was the defendant, and not one of the other residents, who knowingly possessed the illegal computer files.

After developing probable cause that child pornography existed on a computer at the defendant’s residence, the police searched the residence and found three computers: a laptop with the username “Stacy;” a desktop computer; and a laptop with the username “Jamie.” It was on this third computer that the child pornography was located. The police found a form with James’s name, social security number, and date of birth in the office with the third computer.

But the Court noted that none of the computers required passwords. And the peer-to-peer file sharing program apparently involved with the child pornography had to be opened in order to potentially realize that the computer had child pornography (although there were some files that potentially could have contained illegal material in the recycling bin).

According to the Court, the Government failed because its evidence only demonstrated that the defendant owned and occasionally used the laptop, not that he was aware of the illegal material. To meet its burden, the Court suggested that the Government needed to show (if such evidence existed) that use of the illegal material occurred at or near the time the computer was used for some other purpose that identified the individual using the computer as the defendant. On the record before the Court, it concluded that “the evidence did not suggest that someone using the laptop for innocent purposes would know about the ongoing child-pornography downloads.”

The Court rarely finds cases in which the Government has failed to submit sufficient evidence--even when the Government relies only on circumstantial evidence (as it did in Lowe). Hence, this case is instructive with respect to when the Court may find that the Government's intended inferences amount to nothing more than speculation.

Rule 12 Claims Now Reviewable for Plain Error

Failure to raise Rule 12 motions before appeal will result in a forfeiture (not a waiver) of the claim on appeal. In United States v. Soto (a multi-defendant appeal), one defendant failed to raise a severance claim until appeal. Under Circuit precedent, such a claim would have been waived. See, e.g., United States v. Walden, 625 F.3d 961, 967 (6th Cir. 2010). But that precedent relied on a previous version of the Federal Rules of Criminal Procedure. After analyzing the text of the 2014 Rule and the history of the Advisory Committee’s consideration of the new text, the Sixth Circuit held that the defendant had merely forfeited his severance motion, not waived it. The panel then decided to apply plain error review to the claim. Unfortunately, the defendant could not overcome the plain error standard. But the Soto case opens forfeited Rule 12 claims to appellate review.

The case above is United States v. Soto, 13-2300 (6th July 24, 2015).

Monday, July 27, 2015

A bumper crop of opinions

Some days -- and even weeks -- you have to dig pretty hard to find a case that addresses an interesting issue in criminal law in the Sixth Circuit. Other days, such as last Friday, the corn is as high as an elephant's eye. And while everything did not go the way of the defendants of the world, some of the opinions were pretty good. With apologies for the rather cursory discussion, here's what you missed if you took a long weekend:

United States v. Detloff -- A nice win out of the FPD's office in Ohio on a supervised release issue. The Sixth Circuit found itself reminding district courts (and the government, and the appellant's original counsel) that Michigan's resisting arrest statute (Section 750.81d(1)) is not categorically a violent offense. The opinion also helpfully reminded the district court that the guidelines are not mandatory and do not require the supervised-release sentence to run consecutively to his other sentence.

United States v. Randolph -- Practitioners trying to raise arguments about juries' "inconsistent verdicts" run into a whole host of troubles, but not here. The jury found Mr. Randolph guilty of a conspiracy to manufacture or distribute drugs. But when the jury-form required the jury to indicate the quantity of the drugs that were involved in the conspiracy, the jury checked the box for "none" beside each illegal substance, thus suggesting that there were no drugs involved in the conspiracy. The Sixth Circuit ruled that this was not merely an "inconsistent" verdict between multiple counts, as the court has previously addressed. Rather, it was a mutually exclusive verdict within the same count that "reveal[ed] that the government failed to prove an essential element of the charged drug conspiracy," which was a matter of first impression for the court. The court also refused to remand for a new trial, instead remanding for entry of a judgment of acquittal. It explained that to do otherwise would subject the defendant to double jeopardy.

United States v. Bah -- "This case addresses whether an individual has a reasonable expectation of privacy in the magnetic strips on credit cards." (Somehow when an opinion from Judge Rogers, McKeague, and Sargus starts this way, you get the creeping feeling that the answer is going to be "no.") In answering that question in the negative, the court reasoned that the Supreme Court's recent opinion in Riley v. California is not applicable because credit cards do not contain as much information as cellphones. It also held that there was nothing wrong with the traffic stop that led to the search of the credit card. This part of the opinion offers the frustrating reminders that (1) Arizona v. Gant can be pretty toothless if officers just mumble the words "inventory search" at some time during the proceedings, and (2) Rodriguez v. United States doesn't get you very far in challenging prolonged stops (but then, we already knew that).

And finally, United States v. Soto presents a whole host of issues, most of which remind us that it is bad to be on the receiving end of federal charges alleging drugs, kidnapping, and firearms. Perhaps most interestingly, there is a long discussion of whether an appellant can raise a district court's failure to sever claims for the first time on appeal (yes, absent an "intentional relinquishment of the right") and under what standard of review (plain error).

Thursday, July 16, 2015

No reasonable suspicion BUT consent saved the day!!

In United States v. Lee, the Sixth Circuit held that a tip that there were possible weapons at a parolee's house was insufficient to provide reasonable suspicion to allow a search of the residence.  Under the Court's "parolee search" precedent, officers may search a parolee's home without a warrant if they have reasonable suspicion of criminal activity.  Here, the Court found that the tip that weapons were present in Lee's home was from an unknown source, passed through multiple layers of hearsay, and therefore could not provide a basis for the search.

However, the Court found that the defendant's own actions saved the otherwise impermissible search. When officers arrived at the apartment, they asked Lee whether there was anything in the apartment that Lee should not be possessing.  Lee responded with "No go ahead and look"; which the Court found provided all the basis required for the search.

Sunday, July 12, 2015

Intent to Threaten? An Update

The Sixth Circuit, in an opinion written (perhaps coincidentally) by Judge Sutton, reversed a conviction for transmitting threats in interstate commerce (18 U.S.C. § 875(c)) because the judge instructed the jury that it needed only to find negligence and not that the defendant had some level of intent or awareness of wrongdoing. As discussed in the June 2 post, the Supreme Court (citing issues previously raised by Judge Sutton) found that negligence is insufficient to establish culpability. In United States v. Houston, No. 14-5295 (6th Cir. July 9, 2015), Judge Sutton noted that the defendant’s “recorded diatribe . . . could plausibly [cause the listener to] think one of two ways about it. One possibility is that he meant just what he said, creating liability no matter what the standard is. The other possibility is that the recording caught him in a fit of rage in a prison cell (where he was in no position to act on his thoughts and where he did not necessarily know anyone other than his girlfriend was listening).” Under such circumstances, a jury instruction permitting a conviction for negligence led to reversible error (even under the plain error standard).

The Sixth Circuit did not determine the appropriate mens rea standard in the Houston decision. Notably, however, the Government proposed a recklessness standard—which the Sixth Circuit avoided addressing in the first instance as part of its harmless error analysis.

In reversing the conviction, the Sixth Circuit rejected Houston’s challenge to the sufficiency of the evidence—that the Government offered insufficient evidence to establish Houston’s mental state. The Court held that it would be unfair to require the Government to introduce evidence of an element not included in the jury instructions. In other words, the Court judged Houston’s sufficiency challenge not on the legal elements of the charge, but on the elements of the charge as instructed to the jury. It remains to be seen whether the charging instrument is sufficient to support a criminal conviction.

Wednesday, July 08, 2015

Residual Clause of Career Offender Enhancement Void for Vagueness

Building on the Supreme Court's decision that the residual clause of the ACCA is void for vagueness, the Sixth Circuit struck down the residual clause of the career offender enhancement. In a per curiam decision, the Court recognized that it had "previously interpreted both residual clauses identically." And it noted that the Supreme Court vacated sentences involving the career offender enhancement after deciding Johnson. Only enumerated offenses may now be used to apply either the ACCA or the career offender enhancement. 

Following Johnson, Congress and the Sentencing Commission will need to decide whether to substitute a more extensive list of qualifying offenses rather than rely on amorphous descriptions of possible candidate offenses. But if such a list yet requires any judicial factfinding, then that list may be subject to Sixth Amendment concerns (as reiterated by Justice Thomas in his concurring opinion).

Sunday, June 21, 2015

Using Access Devices: the Sentencing Challenge

The Sixth Circuit has twice rejected challenges to the Government’s proof of usability of an unauthorized access device at sentencing (determined under U.S.S.G. § 2B1.1). In both cases, defendants, relying on United States v. Onyesoh, 674 F.3d 1157 (9th Cir. 2013), argued that the Government must establish the “usability” of an access device when calculating loss. In Onyesoh, the Ninth Circuit held that the usability of some access devices may not be readily apparent. There, the Government conceded that “credit card numbers that had expired 35 years ago and were useless . . . would not be covered under the statute.” Id. at 1160. Given that concession and after searching the record, the Ninth Circuit found no evidence to support the usability of certain credit card numbers that “had been expired for some three years” and “no showing Defendant ever took steps or attempted to use the expired numbers.” Id.

In United States v. Vysniauskas, 11-2503 (6th Cir. January 7, 2015), the Sixth Circuit nominally assumed without deciding that the Government must establish usability consistent with Onyesoh. Like Onyesoh, Vysniauskas challenged only the addition of certain access devices in the computation of his sentence. But unlike Onyesoh, the Sixth Circuit did not require any evidence of the usability of the challenged access devices. Instead, the Sixth Circuit relied on the district court’s finding that the challenged access devices were associated with the overall fraudulent scheme because “they helped provide a cover of ordinary activity that lowered the banks’ suspicions of the fraudulent withdrawals.” Vysniauskas at 16. The Sixth Circuit held that such evidence justified the inclusion of those access devices when determining the appropriate loss calculation.

In United States v.Beuns, 14-3326 (6th Cir. June 8, 2015), the Sixth Circuit again assumed without deciding the validity of Onyesoh. In Beuns’ sentencing memorandum, he conceded that he had “embossed and encoded [the contested numbers] on plastic cards,” then “attempted to purchase merchandise with the counterfeit cards.” Beuns at 5. That concession was fatal to Beun’s argument even under Onyesoh.

In Beuns, the panel also expressed some reservation about the validity of Onyesoh by noting that the Ninth Circuit subsequently upheld a sentence (in an unpublished decision) on apparently less evidence than Onyesoh would require. See UnitedStates v. Tien Troung Nguyen, 543 F. App’x. 715 (9th Cir. Cal. 2013). But there is no evidence from the Nguyen decision that the Ninth Circuit considered Onyesoh. Just as the Beuns panel did not cite Vysniauskas, the Nguyen did not cite Onyesoh.

The Onyesoh decision invites a fact-specific challenge to the calculation of unusable access devices when calculating loss at sentencing. Counsel should consider whether the Government has evidence of usability (or actual use) when presenting sentencing arguments and subsequently on appeal.

Friday, June 05, 2015

The plea agreement that wasn't

Let's say you committed a crime. Maybe it involved a fraud related to "antioxidant-rich whole food puree," or maybe it involved apocryphal gold bars supposedly buried by the Japanese during World War II, or maybe it involved both -- we're just spit-balling here. The government has you dead-to-rights, more or less, so you're going to plead guilty. They make you this offer: if you plead guilty (thereby relieving the government of its need to do more work on your bizarre case), they will agree to recommend to the court that you should receive a three-year sentence. If you hold up your end of the bargain and plead guilty, you would have reason to believe that the government would, in fact, make a good-faith effort to recommend a three-year sentence, right?

No. You would not. At least that's the Sixth Circuit's conclusion in the Reed opinion, published today. Rather than uphold the deal it had entered into, the government in this case told the district court how much of a liar Mr. Reed was and how many people he had injured. At the end of the sentencing hearing, just before the court was about to pronounce its sentence, the court stated that "the government has agreed pursuant to the plea agreement to recommend a three-year term of custody." Mr. Reed objected to the obvious: the government never actually had recommended a three-year term of custody. On cue, the government stated that it "recommended a three-year sentence," and Mr. Reed objected that this was too late. The district court rejected Mr. Reed's argument, stating that the prosecutor (who had just demonstrably failed to uphold his end of the bargain) was "unimpeachable"  and noting that the plea agreement itself constituted a recommendation. You heard that right: an agreement to do something actually means you did that thing. The court sentenced Mr. Reed to seven years' custody. Seven years, which is more than three.

In a published opinion, the Sixth Circuit denied relief. Thankfully, it rejected the district court's reasoning that an agreement to pay $10,000 for a car is the same thing as actually paying $10,000 for a car, noting that "[t]his might be a different story if the government had failed to make any recommendation outside the plea agreement itself." The opinion concludes that "[t]he prosecutor was obligated to fulfill his promise -- which he eventually did." The opinion further notes that "[t]he government never advocated for a sentence over three years," so Mr. Reed can take some consolation in that for the next seven years.

I will say what the Sixth Circuit did not say here: regardless of whether Mr. Reed's sentence should be upheld, the prosecutor should not have done this. The prosecutor's promise was as false as the Japanese gold bars from World War II, and prosecutors should be held to a higher standard than fraudsters.

Tuesday, June 02, 2015

Internet Threats—A Time Machine Reflection

To be convicted of threatening people, a defendant must intend to be threatening. Harkening to doubts expressed by Judge Sutton in his United States v. Jefferies dubitante opinion (covered by this blog in August 2012), the Supreme Court agreed that “[h]aving liability turn on whether a ‘reasonable person’ regards the communication as a threat—regardless of what the defendant thinks—‘reduces culpability on the all-important element of the crime to negligence.’” Elonis v. United States, No. 13-983, Slip Op. at 8 (June 1, 2015). Rejecting a negligence standard (and reversing the conviction), the Court left open the question of whether some degree of recklessness could meet the requisite scienter for conviction and did not address potential First Amendment arguments. Id. at 16-17.

          Both cases involved the liberal use of creative lyrics on social media accounts. The lyrics are included in the respective opinions (Judge Sutton describes Jefferies’ efforts as “part country, part rap, sometimes on key, and surely therapeutic”) and are worth review—particularly to lend insight on what can happen in a time of increasing use of social media and mobile access. Notably, “friends” or “followers” of the both defendants took the posts to law enforcement. Since the context of such posts will likely be instrumental in determining the mental state of future defendants, attorneys will need to understand content and access restrictions (if any) when addressing future cases.

And thus began the limiting of Rodriguez v. United States

It was only a little more than a month ago that the Supreme Court issued its opinion in Rodriguez v. United States, 135 S. Ct. 1609 (2015), holding that it is unlawful for officers to prolong a traffic stop beyond the time reasonably required to complete the purpose of the stop. But anyone expecting Rodriguez to dramatically reshape the caselaw landscape for suppression litigation was bound to be disappointed. Today's Zuniga opinion --- apparently the first in the Sixth Circuit to cite Rodriguez --- suggests that the Sixth Circuit is unlikely to use Rodriguez to justify suppression in many more traffic stops than it had previously.

Mr. Zuniga was driving a truck that passed a police car and then allegedly spent too much time between lanes while merging back. This was enough to constitute an "improper or unsafe lane change" and an "improper or unsafe lane usage," which are, evidently, crimes. Perhaps unsurprisingly, the traffic stop lasted longer than is normally required to issue a citation for an improper lane change. Indeed, it took thirty minutes, and it involved a dog, a drill, and a fiber-optic scope to view inside the vehicle's fuel tank. (Did we mention that Mr. Zuniga was Hispanic and driving a vehicle with out-of-state plates?) If you think this sounds a lot like the facts of Rodriguez, you're not that far off. But the Zuniga opinion's preferred method of sidestepping Rodriguez is to find that the officer was perfectly reasonable in prolonging stop because Mr. Zuniga (1) admitted to not being an undocumented immigrant, (2) took too long in pulling over, (3) acted "nervously" in speaking with officers, (4) gave inconsistent responses regarding his travel plans, and, most damningly, (5) the FBI had received some information that a vehicle matching the description of Mr. Zuniga's truck was involved in drug activity. Thus, the officer "had reasonable suspicion to extend the stop for further investigation."

This result is not entirely surprising under the facts of this case, but it suggests that the circuit courts will take a limited view Rodriguez's holding, and it certainly hints at where Rodriguez litigation will focus in the district courts.

Thursday, May 21, 2015

Limiting the "Private Search Doctrine" for Computers

Yesterday, the Sixth Circuit reigned in the "private search doctrine" as applied to computer searches. United States v. Lichtenberger, No. 14-3540. According to Orin Kerr at The Volokh Conspiracy, the opinion creates a circuit split and "may be the next computer search issue to make it to the Supreme Court."

Under the private search doctrine, if a private party conducts a search, without the participation or encouragement of law enforcement, then the private party may show police what was found during the private search. See United States v. Jacobsen, 466 U.S. 109 (1984). Police may not, however, exceed the scope of the private party's initial search without first obtaining a warrant. In fact, an officer must have a "virtual certainty" that the officer's inspection will not reveal more than the private party's search.

In this case, the defendant's girlfriend searched his personal computer and found child pornography. She then contacted police and showed an officer some of the images on the computer. Critically, the girlfriend testified at a suppression hearing that she was not sure whether she showed the officer the same images she saw during her initial search.

As Kerr explains, before Lichtenberger, the Fifth Circuit held that, when a private party views even a single file on a computer disk, the police may inspect all content on the disk without a warrant. The Seventh Circuit followed the same course.

Relying on Riley v. California, however, the Sixth Circuit noted that courts must balance the government's interest in a search against the defendant's privacy interest, and that "the nature of the electronic device greatly increases the potential privacy interests at stake, adding weight to one side of the scale while the other remains the same." This change, the court decided, "manifests in Jacobsen's 'virtual certainty' requirement." The court then held that the officer lacked the necessary certainty here since neither he nor the girlfriend could confirm if he viewed the same files from the initial search. The court thus upheld the suppression of evidence from the search.

The opinion maintains that the Sixth Circuit's approach is consistent with that of the Fifth and Seventh Circuits. Kerr argues that this isn't the case because, although the courts applied the same test, they used "different units" to measure the scope of the search: the whole device, versus a file- or data-based approach. There is a current petition for certiorari from an Eleventh Circuit decision raising this issue.

Wednesday, May 06, 2015

The Right to Parent and Restrictions on Associating with Minors

In United States v. Widmer, No. 13-6283, the Sixth Circuit considered special conditions of supervised release that prevent a defendant from associating with minors without first receiving written permission from his or her probation officer. Mr. Widmer was convicted of possessing child pornography and given a special condition that required him to seek his probation officer's written permission if he wanted to associate with anyone under eighteen. Because Mr. Widmer is the parent of a minor daughter, he challenged the restrict - in part - by arguing it was a constitutional deprivation of his fundamental right to parent and associate with his family. He also argued that the condition did not advance a rehabilitation or safety interest and was either not merited by the record or not supported by a sufficient explanation from the judge.

The Widmer Court noted the right to family life is protected by the Fourteenth Amendment but is not absolute. Rather, special conditions of supervised release that implicate parental rights require explicit consideration by the sentencing court, as they are more intrusive to the individual. The sentencing judge below explicitly addressed the association restriction and its application to Widmer's minor daughter. In reviewing the district court's reasoning, the Widmer court held, "Although Widmer asserts that the association restriction is not narrowly tailored because it affects his association with his own child, it is clear that the restriction is tailored for the precise purpose of protecting Widmer's daughter."

Although Widmer asserted his crime of possessing child pornography was passive, the Sixth Circuit stated that Widmer's disregard for the welfare of the children depicted suggested otherwise. In sum, the Widmer court found that the district court was in its discretion to impose the special condition. The decision also provided a standard procedural reasonableness analysis of the district court's explanation at sentencing.

Wednesday, April 29, 2015

Cell Phone Search Warrants

The Sixth Circuit agreed this week to publish United States v. Bass, No. 14-1387, originally issued as an unpublished decision. In the decision, the court affirms the denial of a motion to suppress a cell phone search. The government urged publication on the basis that “case law applying the contours of Fourth Amendment search and seizure law to cell phones in this circuit is scant.”

The government charged Bass with masterminding an identity-theft ring using credit-card account takeovers. Before Bass’s arrest, law enforcement uncovered “that phone numbers linked to Bass had been used in several account takeovers.” Police then seized Bass’s phone when they arrested him at his mother’s residence. Before gaining entry to the home, police observed him typing on the phone, and when Bass eventually opened the door, he “was arrested with his burgundy Kyocera Torino cell phone still in hand."

The officers obtained a warrant before searching the phone. The affidavit stated that police suspected Bass of crimes in which “cell phones were frequently used by conspirators to text or call each other during the times that the fraudulent activity was taking place,” and that Bass had used the phone at his arrest, “possibly attempting to alert other conspirators of [his] arrest.” The search warrant “authorized the search for any records of communication, indicia or use, ownership, or possession, including electronic calendars, address books, e-mails, and chat logs.” During the search, an officer turned on the phone and obtained its number, which matched with one used during account takeovers.

Bass argued that the search affidavit (1) lacked probable cause, (2) failed to show that his particular phone contained evidence, and (3) was overbroad.

The Sixth Circuit concluded that the affidavit showed a fair probability that the cell phone contained co-conspirator contacts and had sufficient detail to tie this phone to Bass’s offense, particularly since it identified the phone as obtained at his arrest. As for the overbreadth argument, the court decided that, even though the officers could not have known where within the phone, or in what format, the evidence would be, the scope of the warrant was reasonable given that criminals using modern electronic devices often seek to conceal evidence of their criminal activity. For support, the court primarily relied on United States v. Richard, 659 F.3d 527(6th Cir. 2011), which addressed computer searches.

The court also denied Bass a new trial based on the recantation of a witness’s testimony and rejected his challenge to his statutory maximum prison sentence of 264 months.

Tuesday, April 21, 2015

Duplicity and Unanimity Instructions

United States v. Eaton, decided on April 20, 2015, is an appeal from the conviction of former Barren County (KY) Sheriff Christopher Eaton.  The case stems from the arrest and beating of Billy Stinnett in 2010.  Eaton and three sheriff's deputies were charged with excessive force; Eaton was also charged with witness tampering and obstruction of justice.  Eaton was convicted only of two counts of witness tampering.

The most interesting issue raised on appeal regards whether the trial court erred in failing to give a unanimity instructions as to one of the witness tampering counts.  Eaton argues that the proof at trial left the jury with the ability to find that Eaton had committed witness tampering in one of two ways (lying about excessive force or lying about whether Stinnett had a weapon).  Eaton's trial counsel didn't request such an instruction, so on appeal, Eaton was stuck with plain error review.

The court's decision suggests that even had the error been preserved, Eaton would have lost the review.  The panel reiterated the distinction between jurors being unanimous as to elements and jurors being unanimous as to facts.  Citing Richardson v. United States, the court holds that Eaton's case implicates only the "brute facts" underlying the statutory elements; thus, a unanimity instruction was not required.

Saturday, April 18, 2015

Determining Competency

A recent pair of Sixth Circuit cases elucidate the procedure for determining competency—particularly  when a defendant seeks to represent himself. In such circumstance, there are two questions: (1) whether the defendant is competent to stand trial and (2) whether the defendant is competent to represent himself. Under Indiana v. Edwards, 554 U.S. 164 (2008), a district court may appoint trial counsel to a defendant incompetent to conduct a trial even if the defendant is competent to stand trial. A defendant may not represent himself in regard to the first question, but apparently may represent himself in regard to the second.

In United States v.Martin, the Sixth Circuit reversed a conviction because “there [was] nothing in the record to suggest that counsel represented [the defendant] at the [competence] hearing or participated in any way in the determination of [the defendant’s] competency.” The Court held that when “a criminal defendant’s competency to stand trial has been challenged, the validity of the defendant’s waiver of counsel is suspended until the issue of his or her competency is resolved.” The participation of standby counsel may be “sufficient only when standby counsel conducts an adequate investigation of the defendant’s competency and subjects the evidence . . . to meaningful adversarial testing.” (As an aside, the Court applied de novo review to the denial of counsel claim).

In United States v.Stafford, the Sixth Circuit upheld a determination that the defendant was both competent to stand trial and to represent himself. During the hearing to determine competency to stand trial, counsel represented Stafford. But at a subsequent hearing to further inquire into Stafford’s competency to represent himself, the district court noted that standby counsel was “not required to speak” (though it should be noted that standby counsel did speak and opined that Stafford was competent to represent himself). The appellate court emphasized the extensive record built by the district court in reaching its determination and the district court’s superior position to make determinations regarding competency.

These cases demonstrate the avenues and necessity for zealous advocacy even when a  
defendant seeks to proceed pro se.

The cases cited above are United States v. Martin, 11-6544 (6th Cir. April 15, 2015), and United States v. Stafford, 13-4188 (6th Cir. April 10, 2015).   

Tuesday, April 07, 2015

Too white to strike? Reverse-Batson rears its head

Today's unpublished Strong opinion shows the Sixth Circuit wrestling with the always-problematic reverse-Batson claim, made especially problematic here in light of some, shall we say, unusual comments made by the district judge during voir dire.

In a case with two African-American defendants, defense counsel exercised peremptory strikes against three white members of the jury pool. After the government raised a reverse-Batson challenge, the court determined that the defense had presented racially-neutral reasons for two of the strikes, but found that the last one was "poorly supported" and "pretextual." Defense counsel offered several explanations for striking the juror, including that he appeared to have worked for another potential juror and that he had stared at one of the defendants during voir dire. The court believed that both of those explanations were factually unsupported. But the court did not stop there. Instead, it unfortunately implied that the third juror was somehow just too white to strike:

"[T]he reason it appears to have been [pretextual] is that [the juror], who of all of our jurors, is actually remarkably white. He's just plain pale. He makes [defense counsel] and me look like we're rosy complected. That probably sounds bad, but he's just very pale, so, unfortunately, I don't know that that had anything to do with it."

Indeed, it did sound bad. Although the Sixth Circuit ultimately upheld the reverse-Batson determination, the panel "strongly disapprove[d] of the statements regarding relative skin tones that the district court made, and believe[d] that it could have addressed the government's Batson claim in any number of different (and more appropriate) ways."

Monday, March 23, 2015

If the government doesn't like a ruling by the district court, they need to appeal

After his supervised release was revoked, Mr. Burch filed a notice of appeal. He was a few weeks past the 14-day deadline for filing, so he also filed request for an extension of time.* The district court granted the request. The government did not appeal this ruling, or file a cross appeal. Instead, it challenged the order via a motion to dismiss the appeal as untimely, arguing the district court abused its discretion in granting the extension.

There is actually a circuit split on this issue. The Third Circuit rejects the motion to dismiss approach and holds a party must "appeal from the order granting the extension of time to appeal." The Tenth Circuit had a rather convoluted theory that a cross-appeal is only for instances where an appellee wants "more than it obtained by the lower-court judgment" and since the appellee was not seeking alteration of the judgment, they need not file a cross-appeal.

In United States v. Burch, 14-6232, the Sixth Circuit agreed with the Third Circuit and provided some clearer guidance: "litigants dissatisfied with a district court's judgment or order normally must file an appeal challenging the decision." "[A] party dissatisfied with a district court's order is well-served to file [an appeal], whether labeled an appeal or cross-appeal, within the relevant timelines." There is nothing about a time-extension order that suggests any different rule should apply to them.

The Sixth went on to describe instances where a motion to dismiss would be appropriate: where the court lacked jurisdiction; to enforce a valid appeal waiver in a plea agreement; or when a criminal defendant filed an untimely appeal without district court authorization.**

The government's motion to dismiss the appeal was denied. It appears Mr. Burch has until his release on April 28, 2015, to appeal his revocation and/or sentence, as he received jail time with no supervision to follow.

* Practice tip #1: if you must file your notice of appeal late, for whatever reason, file the notice AND a request for an extension of time. If you only file the notice, the Sixth Circuit will docket the case and then tell you in a rather public way that you need to move the district court to allow you to file out of time. Since you will have to do it anyway, go ahead and do it in the first place.

** Practice tip #2: When a defendant files a pro se notice of appeal, the Sixth Circuit will docket the case and notify trial counsel. DO NOT IGNORE THEIR MESSAGE. Even court-appointed counsel are considered appeal counsel unless and until they are relieved. Respond to the message. Put your appearance in. If the defendant has filed out of time, the Sixth will issue a Rule to Show Cause, basically asking trial counsel to figure out what's going on, get the district court's permission to file late, and get in touch with the client. When in doubt, do not do nothing.

Friday, March 20, 2015

Arson, Duplicity, and the Mail

In United States v. Singer, Mr. Singer was convicted of involvement in a fraudulent scheme to buy properties cheaply, obtain insurance coverage, and burn down those properties for insurance proceeds. The government charged Mr. Singer with mail fraud relating to the scheme, as well as individual use of fire to commit mail fraud counts for each property. In response to Mr. Singer's challenge, the Sixth Circuit held that a mail fraud count encompassing multiple acts of a conspiracy is not duplicitous. Further, even if it were duplicitous, a defendant is not prejudiced by avoiding the imposition of additional counts.

The Singer Court also addressed the statute of limitations for using fire to commit mail fraud. Mr. Singer argued that the statute of limitations began to run from the time of the fire. But the Sixth Circuit interpreted 18 U.S.C. 844(h) to be committed only once "a fire or explosive is used to commit another felony - in this case, mail fraud." As a result, the clock began to run at the time of the mailings, not the fires themselves.

Additionally, Mr. Singer argued that because his convictions under 884(h) arose out of the same indictment, they could not be "stacked" consecutively. In fact, the Singer court acknowledged "the government's decision to charge each fire as a separate 844(h) offense is arguably in conflict with its theory that the fires all were part of the same underlying scheme." Nonetheless, the Sixth Circuit found no plain error. The decision also briefly concluded Mr. Singer's severance argument was waived.

Thursday, February 19, 2015

Welcome To Your New Home. The Previous Occupant Committed Crime--We're Here to Search!

Police officers may use evidence garnered from their investigation of a previous occupant to search a home even after a new occupant takes possession. In United States v. Burney, the police spent eight months uncovering substantial evidence that two individuals (Ross and Brown-Jennings) were using a house (the Litchfield property) as part of a drug conspiracy. The police applied for and received a search warrant to search the Litchfield property.

But weeks before the search, Burney moved into the Litchfield property. The police had no evidence that Burney was involved in the drug conspiracy--though they noted in the affidavit supporting the warrant application that Burney had five previous convictions for possession of crack (and that he remained on parole). Moreover, (as Judge White noted in dissent), the affidavit was ambiguous as to whether the police had observed Ross engage in any drug activity at the Litchfield property for months before Burney moved in. Hence, Burney argued that the police lacked probable cause to believe that evidence of crime would be found at the residence (and that any indication that evidence would have been found before Burney took up residence was stale).

The Sixth Circuit rejected Burney’s arguments: “Ross’s and Brown-Jennings’ many connections to the property, together with its having sat vacant for months and only recently having been occupied by a man with multiple drug convictions, made it reasonable to conclude that the property was one of Ross’s stash houses, so that there would be evidence of drug trafficking within it. This is so regardless of whether police had any evidence tying Burney to Ross.” Op. at 6. The majority relied: (1) on the police having seen Ross’s vehicle (though not Ross) at the Litchfield property at some point closer in time to the search; (2) on its finding that the Ross conspiracy was a large-scale drug trafficking and money laundering operation; (3) on its assessment that Burney had a propensity for joining large scale drug conspiracies because he had multiple convictions for possession of crack; and (4) on the fact that Brown-Jennings continued to hold title to the property and receive utility bills for it.

Noting that probable cause is “not a high bar” and that a magistrate’s probable cause assessment should be afforded “great deference,” the Sixth Circuit affirmed Burney’s conviction. Op. at 5 (citations omitted). In so doing, the Court illuminated how much deference it will afford police when a seemingly material change occurs (i.e, a change of occupants at a residence) before police apply for and execute a search warrant. In addition, the decision demonstrates a significant divide within the panel: Judge White, in dissent, found that the good faith exception could not rescue the search, but the majority found no reason to address the Leon exception.

The case discussed above is United States v. Burney, 14-3526 (6th Cir. February 19, 2015), and may be found here.

Wednesday, February 18, 2015

Is leniency "substantively unreasonable"?

The long, painful journey of United States v. Robinson achieved another milestone today, having traveled from district court to the Sixth Circuit to the Supreme Court to the district court and now back to the Sixth Circuit. (Phew.) The result is an opinion that politely suggests that district courts should never impose non-custodial sentences for certain defendants no matter what those defendants' personal characteristics are (at least not child-porn defendants), and should instead put the greatest emphasis on the severity of the crime (as designated by Congress and our collective indignation at this particular offense).

Factually, the district court had sentenced Mr. Robinson to one day of imprisonment with five years of supervised release. The Sixth Circuit found that to be substantively unreasonable in United States v. Robinson, 669 F.3d 767 (6th Cir. 2012). On remand, the defendant put forth considerable post-conviction mitigation evidence and new psychological evidence showing that he suffered from severe mental illness when he committed his offense. The district court resentenced him to one day of imprisonment, but increased his supervised release period to ten years. The Sixth Circuit not only disagreed but was "dismayed" at the resentencing. It vacated the sentence and reassigned the case to a new judge with tacit orders to put the defendant in prison.

For the defender community, there is more weeping and gnashing of teeth to be done over this opinion, but for now the opinion certainly raises a few unanswerable questions:

1. What the heck is substantive unreasonableness? The Sixth Circuit is one of the few that actually rules based on substantive unreasonableness, but statements like the following sure make it seem a lot like procedural unreasonableness: "The deficiency of the district court's analysis of potential unwarranted sentencing disparities on a national level contributed to the imposition of a substantively unreasonable sentence."

2. Does a "serious offense" always mean that a custodial sentence is required? The court takes pains to remind us that possession of child pornography is a "serious offense," which is no doubt true. But so are many other crimes that result in non-custodial sentences on occasion. Does this mean bank robbery could never be punished by a non-custodial sentence? Drug trafficking? Fraud? The court puts great weight on the 10-year maximum sentence, but that is hardly uncommon in the federal criminal code.

3. If a court ever wants to impose a non-custodial sentence, how could it address the general-deterrence element of Section 3553(a)? The district court here made substantial findings regarding the defendant's need for specific deterrence, then noted that this case had not generated any publicity that would affect the general-deterrence calculus. That was not enough, the opinion suggests, because general deterrence is "a goal that this Court has found particularly salient in the child pornography context."

4. Does the court intend to move the goalposts on "seriousness" by claiming that possession of 7,000 images is a "staggering number"? It would be interesting to test this number empirically, but an informal poll suggests that it is more "about average" than "staggering."

5. Would a significantly above-guidelines sentence face the same scrutiny regarding sentencing disparity? The court notes that 96.6 percent of child-pornography defendants face time. Does that mean that an above-guidelines sentence that only occurs 3.4% of the time is necessarily substantively unreasonable?

6. What weight should courts afford post-sentencing mitigation evidence, as compared to the seriousness of the offense? The court here simply states that "[a]lthough the mitigating evidence appears significant, its presence in the record cannot cure the defects in the district court's analysis...." Disregarding the fact that this still sounds like procedural unreasonableness, is the court suggesting that such mitigating evidence could never outweigh the general seriousness of an offense? (Somewhat remarkably, even the government agreed that the mitigating evidence was powerful enough that the defendant should be sentenced to only a below-guidelines three-year sentence. Would that be severe enough for the court? In other words, this opinion emerges from a dispute over an incredibly small sentencing range of between zero and three years.)

The opinion's reference to and reliance on the Sixth Circuit's prior Bistline opinion strongly suggests that this opinion, like Bistline, will be finding its way in and out of the courts for some time to come. Godspeed, Robinson.

Monday, February 09, 2015

Limiting 404(b) evidence, one unpublished opinion at a time

One could be forgiven for missing the defense win in United States v. Richardson, buried as it is in the bottom of Friday's unpublished cases. But in it, Judge Clay wages his quiet campaign against the government's ever-expanding use of 404(b) evidence to prove "motive" or "intent" in drug cases.

The opinion addresses the familiar case in which the government seeks to use a defendant's prior drug conviction to prove "intent" to commit a similar crime: here, drug-trafficking convictions that were 13 years old at the time of the defendant's new drug-trafficking trial. The appeals court vacated the conviction and sentence. The problem, as Judge Clay correctly points out, is that the government never actually presented any evidence or argument regarding exactly how these prior convictions prove intent to act 13 years later, aside from a post-hoc series of inferences that the government suggested on appeal. Absent any such proof, the evidence veered dangerously into the territory of impermissible propensity evidence, especially in light of other, more convicing proof the government had available to it. (Which may speak to Mr. Richardson's chances at his retrial.)

A few notes:
1. The opinion deftly side-steps a circuit-split regarding the standard of review.
2. In a dissent, Judge White agrees that the district court erred in admitting the 404(b) evidence but believes the error was harmless.
3. This is one of those unpublished opinions that makes the reader wonder exactly why it is unpublished.
4. Unmentioned in the opinion is the fact that this was the product of the characteristically fantastic advocacy of the Vanderbilt Appellate Litigation Clinic.

Tuesday, January 06, 2015

Sixth rules 922(g)(4) unconstitutional

Judges Boggs, Siler, and Gibbons all agree, for varying reasons, that 18 U.S.C. § 922(g)(4) is unconstitutional. Section (g)(4) is the one that prohibits people who have a prior mental health commitment from possessing firearms. The case is Tyler v. Hillsdale County Sheriff's Department, No. 13-1876. You can read it here. Lyle Denniston over at SCOTUSblog is far more articulate than I and discusses the case here.

While we do not see 922(g)(4) much in practice, the "strict scrutiny" test the Sixth applied to the statute is important and could be used in other gun-related settings.

Monday, January 05, 2015

New Child Porn decision with varying opinions

On Friday, January 2, 2015, the court released its first decision of the new year, United States v. Walters.   Although the case on one hand is uninteresting (the Court upheld the 151 month sentence and all imposed Guidelines enhancements), it is worth reviewing to show how the individual judges are struggling with CP sentences in general.

Judge Merritt wrote a strong dissent in the case, arguing that the 151 month sentence was "out of proportion" to the offense and violated the Eighth Amendment.  Judge Merritt cited to the Sentencing Commission and the DOJ's stances that sentences for these type of cases were outmoded, and noted that "[i]t seems obvious that nothing is going to soon change the injustices such as this one that are going on every day in the federal courts—unless the courts themselves find a solution that at least ameliorates the problem for the time being."

Judge White concurred in the decision to uphold the sentence imposed, but wrote a separate concurring opinion to voice her concerns.  In her opinion, she stated  "The appropriate judicial response in situations such as this one is not for appellate courts to reduce Guidelines sentences as a matter of course, but rather, for sentencing judges to recognize that Guidelines based on the Protect Act should be carefully scrutinized. Unfortunately, as the dissent observes, Walters’ counsel did not bring to the district court’s attention, or argue on appeal, that the Commission considers the sentence recommended here to be excessive. In the context of a sentencing proceeding in a child pornography case, competent counsel should be expected to bring to the district court’s attention that the Guidelines do not, as in other contexts, reflect the presumed superior expertise and breadth of information of the Commission, and in fact are contrary to the Commission’s considered judgment."  Thus, according to Judge White at least, it may be ineffective assistance for defense counsel to not challenge a CP Guidelines ranges as excessive.

CP sentencings are becoming more and more difficult for district court judges.  It seems that the Sixth Circuit is divided into numerous camps on what is appropriate.  The spectrum is varied, and leaves district court's squarely in the middle to figure out what is appropriate.