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
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
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
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).