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.