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).

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