Friday, December 09, 2016

Sixth Circuit Reverses Denial of Motion to Suppress

In United States v. Abernathy, the Sixth Circuit considered the denial of a motion to suppress stemming from the search of a residence. Officers obtained a search warrant after conducting a trash pull outside Mr. Abernathy's home. That trash pull yielded marijuana roaches and T2-laced plastic bags.

The search warrant affidavit included the statement that the occupants of a residence were "currently engaged in illegal activity." At the Franks hearing that followed, the detective affiant admitted he had no information that anyone was selling drugs out of the residence, had no direct evidence of drug trafficking, and had not seen Mr. Abernathy do anything connected to his residence and drug dealing. While the district court struck the statement in the affidavit as misleading, it ultimately upheld the search warrant, finding that a trash pull alone established probable cause.

The Sixth Circuit considered for the first time whether a trash pull, standing alone, can establish probable cause to search a home. Relying on previous decisions that hinted as much in dicta, the Sixth Circuit held the trash pull alone "did not create a fair probability that drugs would be found in Defendant's home." The Sixth Circuit also found the good faith exception did not apply to the search, particularly in light of the Franks violation.As a result, the district court erred in denying Mr. Abernathy's motion to suppress.

Friday, November 25, 2016

To In Propria Persona or not In Propria Persona? Sixth Circuit Affirms Appointment of Counsel for Unruly Defendant

Defense attorneys have their fair share of stories involving difficult clients, and many of us have served as "standby" counsel for defendants who wish to represent themselves (insert the old "fool for a client" adage here).  In United States v. Pryor, however, the Sixth Circuit addressed a less frequent situation: one in which the defendant is so disruptive to the court's proceedings that it not clear, what, if anything he intends to do.

Jermaine Pryor -- who would prefer we call him "Al Gomono Bey" -- (we will just call him Pryor) was indicted for conspiring to distribute heroin between 2012 and 2014.  The indictment stemmed from an investigation law enforcement that involved several intercepted phone calls between other individuals and Prior, who went by the code names "Daffy" and "Taz."

The procedural history of this case is...well...interesting.  Although he never identified himself as such, Pryor apparently adopted many of the tactics employed by the "sovereign citizen" movement, which is an ideology that rejects the United States' jurisdiction over its members.  Pryor repeatedly interrupted the magistrate judge during his initial appearance to object to the jurisdiction of the United States courts over him.  The magistrate judge subsequently appointed standby counsel for Pryor, to which he again objected, stating he was “not a part of your society. . . . I am a moor, and your laws d[o]n’t apply to me.”  When asked whether he was going to hire his own attorney, Pryor responded that he was not going to do so and explained he was "not a minor and no one . . . will be talking for me."  Pryor's actions in the courtroom ultimately prompted the magistrate judge to order the Bureau of Prisons to evaluate Pryor's competency to stand trial.

Unfortunately, Pryor's competency evaluation, and his subsequent competency hearing, did little to improve his relationship with the magistrate judge.  Pryor objected to being in court and indicated he was appearing in propria persona (a fancy term for pro se).  Despite Pryor's statement, the magistrate judge appointed Pryor's standby counsel to represent him, at least during the competency hearing.  After Pryor repeatedly failed to answer the magistrate judge's questions as to whether he wished to represent himself, the judge appointed Pryor's standby counsel to represent him during the duration of the proceedings.  This did not satisfy Pryor, who continued to interrupt the magistrate judge, to which the judge responded by having Pryor removed from the courtroom.  This did not slow down Pryor, however, who continued sending letters to the court objecting to its jurisdiction.  The court ultimately entered an order directing the clerk to automatically reject his letters.

Now before the district court judge, Pryor continued attacking the court's jurisdiction and its decision to appoint counsel to represent him.  Nevertheless, Pryor's case proceeded to trial, during which the jury convicted him of conspiracy to distribute 100 grams or more of heroin.  The district court subsequently sentenced him to 235 months imprisonment.

On appeal, the Sixth Circuit, after briefly addressing Pryor's numerous arguments regarding its jurisdiction, turned its attention to some of his more interesting arguments, including his assertion the district court erroneously denied him his constitutional right to represent himself.  After addressing this and other arguments Pryor raised, it affirmed his conviction.

In addressing Pryor's self-representation argument, the Court acknowledged the difficult balancing act in which courts must engage in determining whether defendants knowingly and voluntarily waive their right to counsel and intelligently assert their right to self-representation at every stage of the proceedings.  The Court concluded, however, that a defendant must give the court an opportunity to make its preliminary inquiry as to whether he or she is knowingly and voluntarily waiving his or her right to counsel.  The Court found that by constantly objecting to the district court's jurisdiction over him, Pryor did not give the magistrate judge an opportunity to engage in this inquiry.  In summary, the Court found that, considering Pryor's actions in the case, the district court did not err in appointing counsel for Pryor during the proceedings and that he was not entitled to a "mulligan."

Tuesday, November 22, 2016

MS Word Magicians Beware: Amendments to the FRAP are Effective on December 1st!

Microsoft wordsmiths beware! The United States Supreme Court recently adopted significant revisions to the Federal Rules of Appellate Procedure that will affect the format of every brief, motion and other document filed with the court.  Specifically, the new rules discard the page limits found in Rules 5, 21, 27, 35, and 40 in favor of word counts for petitions for permission to appeal and answers thereto, petitions for mandamus or other extraordinary writ and answers thereto, motions and responses and replies thereto, and rehearing and en banc filings.  Further, the new rules reduce the word limits for briefs based on the assumption that one page is equivalent to 260 words.  For example, the new rules reduce the word limit for appellate briefs (where no cross-appeal is involved) from 14,000 to 13,000 words.

The new rules also make significant changes to the rules outside of page and word limits.  For example, they eliminate the three day (mail) rule for documents served electronically.  Litigants thus can no longer add three days to their response deadlines for documents served electronically.  Additionally, the new rules add new provisions for filing amicus briefs in connection with requests for panel or en banc rehearings, clarify the rule regarding the timeliness of post-judgment motions, and they clarify inmate filing rules.

The proposed amendments become effective on December 1, 2016.  Every attorney with a federal appellate practice should review the proposed amendments before their effective date.  You can find them here:

Saturday, November 19, 2016

There Is A Crown Victoria Lurking In The Shadows

Police commonly lay in wait for suspects at their homes. Armed with a search warrant for the home, the police wait until the suspect enters the curtilage of the home before revealing themselves and initiating the search. This tactic permits the police to forego obtaining an arrest warrant while increasing the scope of the search warrant to include what the suspect has on his person. Rarely, however, do police permit a suspect to get a block away from the house before springing into action. But on a snowy night in Grand Rapids, this is what happened to Kevin Price.

In United States v. Price, police had staked out Mr. Price’s home in three vehicles (including a Crown Victoria). Price arrived at the home in a truck with a snowmobile trailer in tow. He exited the vehicle and briefly spoke to someone in a nearby idling car. Police interpreted Price’s actions in relation to the person in the idling car as consistent with a drug transaction (the police did not divine whether the transaction involved a felony amount). Price then went to the back of the home, paced for a few moments (not far from the Crown Victoria), then got into a truck parked behind the home and left.

The police sprang into action—arresting Price at gunpoint a block away. They brought Price back to the home and began their search. In the course of the search, the police discovered evidence of two units Price rented at a nearby storage area. Although Price initially refused consent to search the units, he broke down three hours after his arrest and consented to a search (which revealed controlled substances and firearms). An indictment followed.

Price moved to suppress the arrest and excluded the search of the storage units because they were searched based on consent resulting from the prolonged arrest. The Court rejected Price’s arguments because the police had probable cause to support the arrest. The Court relied upon: (1) the information in the search warrant; (2) the police interpretation of Price’s interaction with the idling driver as a drug transaction (coupled with Price’s criminal history), and (3) Price’s flight from the scene—because, although there was no direct evidence that Price knew the police (or the Crown Victoria) were present, Price could have seen the Crown Victoria and Crown Victorias are “easily associated with police even when unmarked.” Hence, his departure was evidence of flight from the scene. The Court of Appeals affirmed.

The decision marks a troubling expansion of the distance the police can go to arrest a suspect incident to the execution of a search warrant—particularly because of the reliance on the search warrant material to support the arrest. Perhaps the decision is best dealt with by limiting it to its facts, thereby holding it as an arrest case. And, maybe most importantly, if you think you may be suspected of wrongdoing and you see an unmarked Crown Victoria, don’t leave—doing so is evidence of flight.

Thursday, November 10, 2016

New guidance/rule on extensions of time to submit briefs

For many years, the rule of thumb on brief-filing extensions was that you were pretty much guaranteed a 30-day extension and a 14-day extension.

I recently was granted a 30-day extension, and noticed the grant was marked "FINAL EXTENSION." I called the case manager to see if there was some mistake.

Apparently about a year ago, the Sixth Circuit decided cases were moving too slowly through the appeal process and told case managers to tighten up on extensions. The first 30-day extension would have the same standard as always, but any extension after that would not be guaranteed and would depend very much on the reasons given for the needed extension.

Wednesday, November 02, 2016

Court rejects challenge to Ohio's lethal-injection secrecy law

Over a dissent from Judge Stranch, the Sixth Circuit today in Phillips v. DeWine, No. 15-3238, upheld the dismissal of a challenge to the constitutionality of Ohio’s new statutory scheme protecting the identities of individuals and entities participating in the State’s lethal-injection process—what the dissent referred to as “state lethal injection secrecy laws.” The new law requires confidentiality of participants’ identities, prevents licensing authorities from disciplining them because of their participation, and allows participants to sue anyone who discloses their identity.

A group of current death row inmates challenged the law as violating their right to free speech and as instituting an illegal prior restraint on speech. They also argued that it violates their rights to equal protection, due process, access to the courts, and access to government proceedings.

The Sixth Circuit decided that the plaintiffs lacked standing to raise the free-speech and prior-restraint claims. The court explained that, although the broad purpose of the new statute may be to facilitate the plaintiffs’ deaths, they were not the “object” of the statute for purposes of standing, principally because, in the court’s view, the statute regulated the conduct of third parties, not the plaintiffs. The majority also concluded that the argument that the law would lead to deficient executions was speculative.

The court rejected the rest of the claims for failure to state a claim. The court concluded that recognizing a right of access to government proceedings in this circumstance would expand the right beyond what the Supreme Court has allowed. The court also dismissed the equal-protection, due-process, and access-to-courts claims on the basis that the plaintiffs had no constitutional right to discover evidence of ineffective execution procedures or to litigate such grievances effectively.

Judge Stranch issued a fervent dissent. She began with the “horrifying tale” of Ohio’s last execution, which the State botched. After inmate Dennis McGuire’s lethal injection, Judge Stranch explained, he stayed alive for 25 minutes while he spasmed, gasped, snorted, and choked. Judge Stranch stated plainly that there is “no doubt” that the new law “will obstruct scrutiny of Ohio’s execution protocol.” She then explained why, in her view, the plaintiffs had standing to challenge the civil-action provision. She also argued that the majority misapplied Supreme Court law on the First Amendment right of access, and that the district court prematurely dismissed the plaintiffs’ due process claim without examining the viability of a procedural due process theory. She ended on a call to permit these types of claims to be heard in order to “protect[] the functioning of our justice system.”

Wednesday, October 26, 2016

Michigan breaking and entering is not "burglary" under the ACCA

Great win for AFPD Paul Nelson out of the Western District of Michigan!!

United States v. Ritchey, 15-2460

The Court has held that Michigan's breaking and entering statute, Mich. Comp. Laws § 750.110, is broader than the generic definition of burglary.  Further, because it had a broader definition of "building", which included means of committing the offense, it could never qualify as an enumerated burglary offense.  Thus, Ritchey's 180 month sentence was unconstitutional.

Also important was the Court's ruling that Ritchey did not waive his claims.  The Government on appeal argued that because Ritchey agreed, at his plea hearing, that his priors qualified under the ACCA, he had waived the argument for appeal.  But the Court found "regardless of whether he
conceded this point, Ritchey could not have waived or intentionally relinquished an argument
based on Mathis because the case was decided after his sentencing."

Monday, October 03, 2016

Mitigating-role amendment is retroactive

Today's decision in United States v. Carter recognizes the perhaps obvious fact that Amendment 794 applies retroactively because it is a "clarifying" as opposed to "substantive" amendment. Amendment 794 amends the commentary to U.S.S.G. § 3B1.2, the guideline that allows judges to reduce a defendant's base offense level if the defendant had a lesser role in his or her offense. The amendment requires judges to consider certain new factors regarding the individual's role. Such "commentary-only" amendments are almost always interpreted as "clarifying" and thus retroactive, and so it was here. The defendant had been sentenced before the amendment went into effect. However, because the defendant's sentence was not yet final, and because the court had not considered the factors added by Amendment 794, the Sixth Circuit remanded for resentencing.

The unsurprising holding regarding retroactivity in Carter is most relevant for what it does not stand for. Prison gossip has led many to believe that Amendment 794 would provide an avenue for early release from prison along the lines of Amendment 782 or the various "crack amendments." In fact, the retroactivity of this amendment will likely affect only those individuals whose sentences are not yet final. 

In any event, a good result in this case and for other defendants who may benefit.

Thursday, September 15, 2016

What Exactly Does "Conviction" mean?

 The opinion in United States v. Canelas-Amador reads like a suspense novel with the first paragraph eliciting the intrigue of the reader.  This is merely a summary of the opinion but you are encouraged to read it (United States v. Wilmer Canelas-Amador, No.15-6035) on your own. 

Several years ago, Wilmer Canelas-Amador was arrested in Tennessee state court for felony aggravated assault and a few misdemeanors.   A “Waiver of Trial by Jury and Acceptance of Plea of Guilty” was an executed form found in the court record. However, no findings of fact or hearing transcripts were available.  Before his formal state sentencing, Mr. Canelas-Amador was deported to Honduras by the federal immigration authorities.   No one informed the Tennessee state judicial system that he had been deported and a capias was ordered due to his failure to sit for a presentence interview.   Mr. Canelas-Amador reentered the United States shortly thereafter and was rearrested and charged in federal court in Texas. He pled guilty to illegal reentry and received one year of imprisonment. 

In 2015, he was arrested in Tennessee and again charged in federal court with illegal reentry.  After a guilty plea, he received a sentence of 57 months’ imprisonment due to a guideline range calculation of 57-81 months.  The district judge considered the “Waiver of Trial by Jury and Acceptance of Plea of Guilty” as proof of conviction for a felony crime of violence.  This designation enhanced his guideline calculation by sixteen levels.  The district judge relied upon opinions in other circuits because USSG § 2L1.2(b)(1)(A)(ii) did not define ‘conviction,’ and this issue had yet to be considered by the Sixth Circuit. 

On appeal, the Sixth Circuit was presented with one question.  “Was the district court right that the state court order accepting the guilty plea was a conviction for purposes of § 2L1.2(b)(1)(A)(ii)?”  The short answer is no. 

The government encouraged the Sixth Circuit to rely on the definition of ‘conviction’ found in USSG § 4A1.2(a)(4) rather than 8 U.S.C. § 1101(a)(48)(A).  The government reasoned that it would be ‘odd to define a conviction one way for the computation of criminal history - §4A1.2(a)(4) – and another way for computation of the impact criminal history has on the offense level - §2L1.2.”    The Sixth Circuit found a circuit split on the question.  The Fourth, Fifth, Tenth and Eleventh Circuits rely on §1101; whereas the First, Second and Ninth depend on the guideline language found in §4A1.2(a)(4). 

By applying the rule of lenity, the Sixth Circuit held that the more restrictive definition in §1101(a)(48)(A) applies.   Therefore, Mr. Canelas-Amador was never convicted of aggravated assault by the Tennessee state court and his guideline range should have been significantly lower.  The case was reversed and remanded to district court for resentencing. 

This was an excellent win for the defense and it was spearheaded by our very own blog contributor, Laura Davis, Federal Defender Services of Eastern Tennessee. 

Tuesday, September 13, 2016

New? rule for withdrawing as counsel

A helpful case manager at the Sixth Circuit alerted me to 6th Cir. R. 12(c)(4)(D), regarding motions to withdraw as counsel. I do not have to file these very often, so am not sure when the notice requirement was added. Should the rare occasion arise that you need to withdraw, be sure to notify your client he has 14 days to respond to the motion, and note in your motion his current location. Your certificate of service, provided it has adequate information about your client, is adequate proof that you have served your client.

Tuesday, September 06, 2016

Twelve Minutes Sufficient Prep for Supervised Release Violation Hearing: Coleman

Last week, the Sixth Circuit decided United States v. Coleman, which held counsel was not constitutionally ineffective in accepting an in-court appointment on a supervised release violation, briefly reviewing the case, and then proceeding with the hearing. Defense counsel was appointed at the beginning of the hearing when the defendant expressed dissatisfaction with his current appointed counsel. The district court then briefing recessed, and defense counsel spent twelve minutes reviewing the case  before proceeding with the violation hearing.

When Court resumed, Mr. Coleman did not contest the violation. The district court offered to adjourn the hearing to allow Mr. Coleman additional time to prepare, but he advised the court that he wanted to get the hearing over with. The Sixth Circuit looked to its decision in Fuller v. Sherry, 405 F. App'x. 980 (6th Cir. 2010), which analyzed belated appointments under the United States v. Chronic, 466 U.S. 648 (1984), five-factor framework for ineffectiveness. The Court concludes, "Although we acknowledge that twelve minutes would ordinarily be a relatively short amount of time for an attorney to investigate and prepare for a revocation hearing, Coleman did not—and does not now—contest the charges against him."

Specifically, the Coleman Court acknowledged that additional time might have allowed for more extensive mitigation to be presented. But because newly appointed counsel did raise Mr. Coleman's substance abuse problem - the primary mitigation in his case - defense counsel did not "entirely" fail to put the case to adversarial testing. The Sixth Circuit, in affirming Mr. Coleman's sentence on the violation, also compared Mr. Coleman's case to cases in which it found ineffective assistance based on far more egregious facts. Ultimately, the presumption of prejudice was not applied in Coleman "given that Coleman’s revocation hearing presented his attorney with a relatively simple task for which extensive preparation would have been of questionable value."

Judge Clay dissented from the majority, writing "such circumstances cannot possibly satisfy the constitutional requirement that a defendant be afforded effective legal representation." In dissenting, Judge Clay wrote that prejudice in Mr. Coleman's case must be presumed, because no defense attorney could digest more than thirty pages of presentence investigation report and violation report, as well as consult with a client, in the time allotted. Applying Chronic, the dissent concluded that "no lawyer—not even the most experienced and competent criminal defense attorney—could provide the kind of assistance of counsel required by the Sixth Amendment in just twelve minutes"."

Mr. Coleman also argued his sentence was procedurally unreasonable, because he received a sentence above the Guideline range. The Sixth Circuit determined the colloquoy at the violation hearing was sufficient to support the variance.

Friday, August 26, 2016

Proffer Me This: Counsel is Not Ineffective for Approving Broad Proffer Agreement

In Fifer v. United States, the Sixth Circuit confirmed that proffer agreements can vary in scope and in the latitude they afford the Government in using the defendant's statements should he or she decide to take their case to trial.  The Court's decision also serves as a reminder that proffer meetings also present risks for the defendant and his or her counsel.

Upon his indictment for being a felon in possession of a firearm and possessing with intent to distribute approximately 13 grams of crack cocaine, Demarcus Fifer retained James Ball, who had previously represented him and with whom he had a personal relationship.   Fifer's criminal history was far from pristine.  This fact, along with the strength of the Government's case, convinced Ball to recommend that Fifer pursue a plea bargain and by cooperating in an effort to obtain a § 5K1.1 motion for a sentence below the then-mandatory Guidelines range.

As with any proffer, the Government presented Fifer and Ball with a two-page letter setting forth the terms of the proffer meeting.  Aside from reciting the language typical for a proffer agreement, the letter also stated that the Government could use Fifer's statement "to rebut any evidence, argument, or representations offered by or on [his] the government's case-in-chief in connection with the trial and/or sentencing...."  After reviewing the letter with Ball, Fifer proceeded with the proffer meeting during which he admitted to possessing the firearm at issue and to possessing crack cocaine.

Before reaching plea deal with the Government, Fifer made the fateful decision to not change his plea and to take his case to trial.  At the same time, he fired Ball and requested new counsel, which the trial court subsequently appointed for him.

Although he did not testify, Fifer suggested through the cross-examination of one of the Government's witnesses that he did not possess the firearm or the drugs at issue.  The Government moved to admit Fifer's proffer statements, and the trial court overruled his objections to the same.  A jury subsequently convicted Fifer of both counts of the indictment, and the Court sentenced him as career offender to concurrent sentences on each count of 120 and 292 months, respectively.

After finding no success during his direct appeals, Fifer turned his ire to Ball, filing a §
 2255 motion to vacate his sentence for ineffective assistance of counsel.  The trial court subsequently overruled his motion.

In an unpublished decision, the Sixth Circuit affirmed the trial court's decision and found that Ball's representation of Fifer with respect to the proffer was not ineffective.  In reaching its decision, the Court rejected Fifer's argument that it was objectively unreasonable for Ball to recommend what he deemed to be an "unusually broad" waiver.  After finding that Ball understood the broad waiver provisions contained in the proffer letter, the Court also found that the provision was not so broad as to make it objectively unreasonable for Ball to have advised Fifer to agree to it as a condition of the proffer.  In examining the scope of the waiver, the Court found that it had upheld similarly broad waiver language in other proffer agreements.

This case serves as a reminder that the decision to recommend your client participate in a proffer meeting in anticipation of a plea agreement is fraught with risks for both the defendant and his or her counsel.  Perhaps Ball described it best by explaining it is "a little like Russian Roulette...."

Sunday, August 21, 2016

Johnson Is Retroactive For Career Offender Determination, But Still Must Wait For Beckles

The Sixth Circuit will authorize second or successive § 2255 petitions to address Johnson issues related to application of the career offender enhancement. In In re: Antonio D. Patrick, the Sixth Circuit found that Johnson announced a substantive change that applied retroactively and on collateral review—a holding permitting successive petitions.

The Government argued that the petition should not be permitted because Johnson is procedural. The Court rejected that argument as contrary to the Supreme Court’s decision in Welch v. United States, 136 S. Ct. 1257, 1265 (2016) (“under this framework, the rule announced in Johnson is substantive.”). As explained in Welch, Johnson changed “the range of conduct or the class of persons” punishable under the ACCA—a substantive change. Under Pawlak, the Sixth Circuit found that the same reasoning applied to the career offender residual clause.

The Court also rejected the Government’s argument that Johnson must be procedural in regard to the Guidelines because the Guidelines themselves are procedural. Finding that sentencing courts lack discretion to forego reference to the Guidelines, the Court concluded: “that the Guidelines are not mandatory is a distinction without a difference.” In re Patrick (quoting Pawlak, 822 F.3d at 907).

In reaching this result, the Sixth Circuit joined the Second, Fourth, Fifth, Ninth, Tenth, and D.C. Circuits (though Judge Sutton previously asserted that the Fifth Circuit has rejected arguments akin to Patrick’s in In Re: Alford D. Embry). Significantly, consistent with In Re: Alford D. Embry (discussed in this blog’s July 29 post), the Court found that further consideration of Patrick’s petition must be held in abeyance pending the Supreme Court’s decision in Beckles v. U.S. (where the Supreme Court granted certiorari to review the Eleventh Circuit’s decision that Johnson is inapplicable to the Sentencing Guidelines). Hence, Patrick and similarly situated persons must watch for the Supreme Court decision in Beckles (the Government’s brief is currently due September 19, 2016).

Career Offender Clarifications

Adult convictions, even if committed and obtained before a defendant is eighteen, may be used when determining career offender status. In U.S. v. Doxey, the Sixth Circuit (in a published opinion) joined the Fourth and Tenth Circuits in finding that the plain language of Committee Note 1 to 4B1.2 requires that result.

The Sixth Circuit also confirmed that plain error review is required if a defendant fails to make a Johnson claim at sentencing. In Doxey’s case, he objected to the career offender enhancement because his two prior drug convictions involved a relatively insubstantial amount of drugs, but he did not contest his conviction for third-degree fleeing and eluding a police officer. The Court found no record evidence that the sentencing court relied on the flight conviction when applying the career offender enhancement. As such, the Court found no error.

Friday, July 29, 2016

J. Sutton: Wait for Beckles

In today's opinion in In Re: Alford D. Embry, Judge Sutton notes the differing opinions on whether Johnson v. United States, 135 S. Ct. 2551 (2015), applies to the Guidelines and whether it applies retroactively to the Guidelines. There is also some interesting discussion of when the statute of limitations for a 2255 on the issue would start to run: Johnson? Pawlak? Beckles?

Happy note: Making the argument that Johnson applies retroactively to the Guidelines meets the gatekeeping requirements for a second or successive 2255 petition. So people petitioning the Sixth for Johnson relief for Career Offender or 2K2.1 or suchlike will get remanded to the district court to litigate the issue.
CORRECTION: Upon closer reading - the gatekeeping question isn't even answered. The panel recognizes that the district court is also able to determine whether the gatekeeping requirements are met, and because of the restricted appeal rights, perhaps the district court is the best court to make gatekeeping decisions.

Frustrating note: Judge Sutton endorses waiting for the Supreme Court to rule in Beckles so that courts can have a definitive ruling on how Johnson applies in Guidelines cases. Furthermore, the best place to do that waiting is in district court.

Friday, July 22, 2016

The Gang's All Here - I see em in Court!

In cases where multiple defendants are allegedly members of gangs, the Government loves to bring in "expert" witnesses on how gangs operate, hierarchy, etc.  It makes for compelling testimony for the jury.  But sometimes the Government takes its witnesses a little too far.  In United States v. Rios, the Court held that a witness will not be a proper FRE Rule 702 witness where they mix fact with their expert testimony on the particular gang under indictment.  In Rios, one of the witnesses testified as the lead investigator, as well as an expert witness on gangs.  The witness not only informed the jury about how the particular gang worked, but peppered in his personal observations to support the expert testimony.  The Court found that " it is difficult to parse what came from Haglund the expert and what came from Haglund the investigator because there was no clear demarcation between his fact and expert testimony during the trial. This confusion regarding the capacity in which Haglund was testifying is independently problematic. The district court did not delineate Detective Haglund’s testimony—and Haglund himself never distinguished between his fact and expert testimony."  Therefore,  "even if Haglund’s testimony did not exceed the scope of Rule 702, his overall presentation as a dual fact-expert witness without further demarcation or explanation to the jury was in error."  Unfortunately for the defendants, however, the Court went on to find such error harmless under the circumstances of the case.   

Monday, July 18, 2016

Pointing a Gun Is A Crime of Violence; Johnson v. United States Shrinks Further

The Sixth Circuit in United States v. Rafidi again grappled with what constitutes a “crime of violence” under 18 U.S.C. § 924(c), a question that has divided sharply the courts of appeals in the wake of the Supreme Court’s decision in Johnson v.United States, 559 U.S. 133 (2010). Rafidi presented directly the question of whether a violation of 18 U.S.C. § 111(b)(assault on a federal officer) constituted a “crime of violence” under § 924(c).

The case arose from execution of a search warrant at defendant’s residence by a number of law enforcement officers including federal agents. The officers knocked and announced and, according to the trial testimony, observed defendant through a glass window pick-up a silver gun. Defendant approached and swung open the front door and pointed the gun at a federal agent, which provoked another officer to open fire on defendant, although he was not hit. He retreated inside his residence, then emerged unarmed and surrendered.

Rafidi was charged and found guilty of two offenses: (1) forcibly assaulting a federal officer in violation of 18 U.S.C. § 111(a)(1) and (b); and, (2) using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. §924(c)(1)(A)(ii). He was sentenced to 10 months on the § 111 charge and a consecutive 84 months on the § 924 charge. Defendant’s main appeal issue was whether a violation of § 111 is a “crime of violence” for purposes of § 924(c).

The Court began its analysis by dissembling § 111, a “rather convoluted statute,” that sets forth three separate crimes: (1) misdemeanor simple assault; (2) felony assault; and, (3) aggravated felony assaults involving a deadly or dangerous weapon or causing bodily injury. The third of these applied to defendant, so the question, as the Court framed it based on Johnson, was “whether § 111(b) has as an element the use or attempted use of ‘violent force – that is, force capable of causing physical pain or injury to another person.’”

Key, the court asserted, was that a violation of § 111 requires that a defendant act forcibly. This element is satisfied in two ways, both of which establish § 111(b) as a “crime of violence.” First, the force element could be satisfied by proof of actual physical contact, which combined with use of a deadly weapon is sufficient to establish § 111(b) as a “crime of violence.” Second, even in the absence of physical contact, the force element is established by proof of a threat or display of physical aggression sufficient “to inspire fear of pain, bodily harm, or death.” Pointing a gun at a federal officer did this so the court held that the defendant’s conviction for § 111(b) constitutes a “crime of violence” under § 924(c)(3).

Senior Circuit Judge Andre Davis, visiting from the Fourth Circuit, concurred in result and in dubitante. Judge Davis’ expressed concern that “the use of a dangerous weapon in ‘forcibly,’ but not ‘violently,’ resisting arrest by an FBI agent, for example, categorically elevates the kind of non-violent force sufficient to satisfy § 111(a) into ‘violent force’ within the meaning of” Johnson’s holding. Nevertheless, Judge Davis concurred based on the court’s prior decision in United States v. Taylor, 814 F.3d 340 (6th Cir. 2016), and on the grounds that a violation of § 111(b) is a predicate offense under the residual clause of § 924(c)(3)(B).

Thursday, July 07, 2016

Johnson applies to Immigration and Nationality Act’s residual clause

         The Supreme Court held in Johnson v. United States, 135 S. Ct. 2551 (2015), that the Armed Career Criminal Act’s (ACCA) residual clause’s definition of “violent felony” was void for vagueness. See 18 U.S.C. § 924(e)(2)(B)(ii). In Shuti v. Lynch, the Sixth Circuit extended Johnson’s reach to the Immigration and Nationality Act’s (“INA”), 8 U.S.C. § 1101 et seq., residual clause’s definition of a “crime of violence.”  

          Altin Shuti, a lawful permanent resident of the United States, was convicted of unarmed robbery which Michigan law defines as ‘“larceny of any money or other property’ accomplished by using ‘force or violence against any person who is present’ or ‘assault[ing] or put[ting] the person in fear.’” Mich. Comp. Laws § 750.530. After Mr. Shuti was sentenced to a prison term of more than a year, the Department of Homeland Security initiated proceedings to remove him to his home-country of Albania.  

          Under the INA, a non-citizen “convicted of an aggravated felony at any time after admission,” 8 U.S.C. § 1227(a)(2)(A)(iii), is ineligible for most forms of discretionary relief from removal. An “aggravated felony” means “a crime of violence (as defined in section 16 of title 18 …) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). A “crime of violence,” as defined by 18 U.S.C. § 16(b), includes “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  

          In Mr. Shuti’s case, an immigration judge ordered his removal to Albania. Although the Supreme Court decided Johnson while Mr. Shuti’s case was on appeal, the Board of Immigration Appeals (BIA) stated that it did not address the constitutionality of the laws it administered. The BIA concluded that the void-for-vagueness doctrine did not apply to civil removal proceedings and affirmed the removal order.  

          In an opinion by Chief Judge Cole, the Sixth Circuit rejected the notion that the void-for-vagueness doctrine did not apply to removal proceedings because they were civil in nature. The court examined the residual clauses of the ACCA and the INA and found that they “undeniably bear a textual resemblance.” Chief Judge Cole noted that “both provisions combine indeterminacy about ‘how to measure the risk posed by a crime’ and ‘how much risk it takes for the crime to qualify’ as a crime of violence or a violent felony.” Thus, the court found that the INA’s residual clause fell “squarely within Johnson’s core holding” and that its definition of a “crime of violence” was void for vagueness.

Friday, July 01, 2016

The death by a thousand cuts of Johnson v. United States

This is the way the world will end. Not with a bang but with a series of dispiriting unpublished opinions. If you thought that Johnson would usher in a new era of sentencing jurisprudence based on close analysis of the remaining provisions of post-residual-clause sentencing statutes, you are now waking up to the dystopian reality suggested by today's opinion in United States v. Jackson. Jackson addresses whether a Georgia conviction for conspiracy to commit voluntary manslaughter is a violent felony under the Armed Career Criminal Act. You have already guessed the answer.

The Georgia voluntary manslaughter statute punishes murder when committed "as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person." The first way you know that this case will not turn out well is when the conviction is for conspiracy to commit voluntary manslaughter, but the opinion does not discuss conspiracy. How could merely conspiring to do something ever have as an element the use, attempted use, or threatened use of force? The opinion has no intention of answering that question. (Come to think of it, how could you even conspire to commit a murder under a "sudden, violent, and irresistible passion"? The state of Georgia is going to have to answer that one.)

But even after the opinion dedicates itself to addressing a different crime than the one the defendant was convicted of, it finds ways to shoot down a few sacred cows of Johnson jurisprudence. It simply shrugs off the notion that you can easily kill someone in ways that do not involve "force" as defined by the Supreme Court, "like poisoning or laying a trap" or through "deceit or fraud," suggesting that this issue is already settled in the Sixth Circuit. The panel alights on United States v. Anderson, 695 F.3d 390 (6th Cir. 2012), but it ignores cases like United States v. Jones, 673 F.3d 497 (6th Cir. 2012) (acknowledging that Tennessee attempt to commit second degree murder could not have an element of force because it "includes poisoning, which need not involve direct physical contact or force").

Even though Jackson was relegated to the unpublished opinions, defenders will need to sharpen their pencils and be prepared to distinguish this case -- and the inevitable bad cases to follow -- if they want Johnson to have any appreciable impact on clients.

Wednesday, June 29, 2016

The sentencing wisdom of the jury

The Sixth Circuit offered up a major sentencing win for the defense today in United States v. Collins, reaffirming the notion that judges have broad discretion in what factors they consider at sentencing. Here, the judge considered a "jury poll" as just one factor in imposing concurrent five-year sentences for receiving and distributing child pornography.

While juries are not ordinarily supposed to be involved in sentencing decisions, some judges have begun polling juries after the verdict to see how they would have sentenced the defendant, in part to see how far "off" our mandatory minimum sentencing schemes really are. It has become common to hear of juries assuming that a defendant would receive six months for a drug crime that imposes a decades-long mandatory sentence. Perhaps less common is to see a jury think that a child-pornography defendant should get only a little more than a year, but that is exactly what happened here. The district court considered that jury poll as one factor in granting a downward variance from the guidelines range of 262-327 months to only 60 months. The government appealed.

The Sixth Circuit panel made explicit what it had only expressed in dicta in a previous case, United States v. Martin, 390 F. App'x 533 (6th Cir. 2010): The district judge did not err in considering the jury poll. Indeed, as the panel noted, a guidelines sentence must consider "the community view of the gravity of the offense" in accordance with Section 994(c)(4) of Title 28. The opinion is remarkable in its rereading of cases that defense lawyers typically hate, including the notorious Bistline opinion. The panel reads that case as suggesting "the plausibility of rejecting guidelines ranges in child pornography cases based on policy disagreements." (Unfortunately, the opinion also suggests that the district judge in Bistline "made no genuine efforts to discuss the § 3553(a) factors," which is inaccurate.)

The opinion makes clear that it does not affect precedent prohibiting juries from considering sentencing in rendering a verdict, but it does offer a reminder that juries can rightly be considered as the voice of their communities.


Tuesday, June 28, 2016

If at first you don't succeed

Every now and again a lawyer finds a way to snatch victory from the jaws of defeat. Case in point: United States v. Ricky Brown. You might remember this case from back in September 2015. Or more probably you don't remember it, because it was just another affirmance of the denial of a suppression motion -- a common sight in the Sixth Circuit. But Dennis Terez in the Cleveland Office of the Federal Public Defender and Melissa Salinas of the University of Michigan Clinical Law Program evidently did not see it that way.

This case presented a common fact pattern: Officers had probable cause to believe that Mr. Brown was a drug dealer, but no evidence that he used his home for dealing drugs. Nevertheless, they managed to get a search warrant for the home based on the hunch that there would be more drugs there. Back in September two judges (Judge Stranch and District Judge Black) were convinced that the drug dealing outside the home raised enough of a "reasonable inference" to justify a search warrant of the home. Judge Clay disagreed, noting that this question had already been decided by cases like United States v. Frazier, 423 F.3d 526 (6th Cir. 2005).

Mr. Brown's legal team sought en banc rehearing. Rather than grant such rehearing, the three-judge panel took the rare step of reversing itself and issuing an "amended opinion." Although authored by Judge Stranch, that opinion aligned with Judge Clay's dissent from September, noting: "[O]ur cases teach, as a general matter, that if the affidavit fails to include facts that directly connect the residence with the suspected drug dealing activity, . . . it cannot be inferred that drugs will be found in the defendant's home -- even if the defendant is a known drug dealer."

Quite a win for a case that many lawyers would have already written off as a loss.

Monday, June 27, 2016

Pencils Down

Happy J-Day to everyone in the federal-criminal-law community -- the day by which all Johnson petitions are due, depending on your interpretation of how a leap-year affects a one-year statute of limitations. Hopefully everyone has all of their petitions filed and can look forward to their first anxiety-free night of sleep in months. But fate has conspired to make all of the lingering questions linger a little longer: What of the career offenders of the world and the cert grant in Beckles? What of the 924(c) claims? What does Mathis have to say about all of these claims that we raised (or, worse yet, did not raise)? The saga continues. But in the meantime, thousands of petitioners out there have another shot at relief. Congratulations to everyone on their hard work.