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.