Monday, February 29, 2016

District Court Erred in Excluding Evidence Going to an Element of the Offense

In United States v.Odeh, the Sixth Circuit reversed the district court’s decision that the testimony of Ms. Odeh’s expert was “irrelevant” and “inadmissible.”  The Sixth Circuit held the court erred in relying on United States v. Kimes, 246 F.3d 800 (6th Cir. 2001) and United States v. Gonyea, 140 F.3d 649 (6th Cir. 1998) because the evidence sought to be introduced by Ms. Odeh undermined an element of the crime.
In 1969 and 1970, Ms. Odeh, living in Israel, was convicted in military court “for her role in a bombing in a supermarket that killed two civilians and wounded others, and for her role in an attempted bombing of the British Consulate.”  Ms. Odeh spent 10 years in prison before being released through a prisoner exchange. She moved to Jordan in 1983. In 1994, Ms. Odeh submitted an immigrant visa application to the US State Department in Amman, Jordan.  In her application, she denied ever having been arrested, convicted or sentenced to prison. Her application was approved and Ms. Odeh moved to the United States.
In 2004, Ms. Odeh applied for citizenship.  In her application, and her subsequent interview with an immigration officer, Ms. Odeh again answered no to the questions asking whether she had ever been charged, arrested, or convicted of a crime. Her citizen application was approved.
In 2013, Ms. Odeh was charged with one count of unlawfully procuring naturalization under 18 U.S.C. § 1425(a). Ms. Odeh did not dispute that her answers to the questions regarding a prior conviction were false. However, she maintained that she did not knowingly make false statements.  Ms. Odeh sought to introduce the testimony of Dr. Mary Fabri, a clinical psychologist, who would testify that Ms. Odeh suffered from PTSD. Ms. Odeh maintained her confession to the bombing in Israel was the result of a month long severe torture by the Israeli military. Ms. Fabri opined Ms. Odeh’s PTSD “operated to automatically filter out Odeh’s time in Israel, causing [her] to interpret questions so as to avoid any thought of her trauma.”
The district court ultimately, relying on Kimes and Gonyea, found Ms. Fabri’s testimony would be irrelevant and inadmissible because it could not be used to negate the mens rea of a general intent crime. The Sixth Circuit reversed, finding the court’s reliance on Kimes and Gonyea was an error. In Kimes and Gonyea, the defendants sought to introduce psychological evidence in defense to a general intent crime. The Sixth Circuit held this type of evidence was not admissible because it did not potentially negate an element of the crime.  Here, the evidence Ms. Odeh sought to introduce was different. Without reaching the issue of whether § 1425(a) was a specific intent or general intent crime, the Circuit found Ms. Fabri’s testimony is relevant to whether Ms. Odeh knew that her statements were false.  Because the evidence went directly to an element of the offense, the district court erred in finding the evidence was categorically inadmissible.  Notably, the Sixth Circuit stopped short of ordering a new trial or finding the evidence must have been presented to the jury. The Court remanded the case to the district court for an evidentiary hearing.
The other interesting issue presented in this case, and the one that caused the split among the judges, was what language should have been redacted from the Israeli indictment. Pursuant to a treaty, the government obtained documents from Israel related to Ms. Odeh’s convictions and these documents were admitted at trial. In one of the exhibits, Ms. Odeh is charged with “plac[ing] explosives in the hall of the SuperSol in Jerusalem .  . . with the intention of causing death or injury” and that “[o]ne of the bombs exploded and caused the death of Leon Kannar and Edward Jaffe, May Their Memory Be a Blessing, as well as injuries to a multitude of people.”
Ms. Odeh argued, in part, that the document should be redacted because the probative value was substantially outweighed by the risk of prejudice. The district court declined to redact. In the Sixth Circuit opinion, Judge Rogers found the district court did not abuse its discretion and remarked that the court’s limiting instruction “is presumed to have reduced the risk of impermissible inferences.”  In her concurrence, Judge Moore found the district court should have redacted the victims’ names and the prayer because those portions had no probative value. Judge Moore concluded the error was harmless. Judge Batchelder dissented in this part of the opinion, finding the district court erred in allowing any of the objected-to portions of the Israeli indictment to go before the jury and such error was not harmless.

No Sentencing Reduction Allowed For Career Offender Even Though Court Used Base Offense Level Under Drug Table At Original Sentencing.

In United States v. Smith, 6th Cir. 15-5853, the Sixth Circuit held that the career offender provision may be a bar to a sentencing reduction under 18 U.S.C. § 3582(c)(2)if the defendant’s base offense level at the original sentencing was based on U.S.S.G. §2D1.1 because it was higher than the base offense level set under §4B1.1.
In 1994, Eric Smith was convicted of participating in a drug conspiracy involving 2.35 kilograms of crack cocaine. The sentencing guidelines in effect at the time set his base offense level at 38, under U.S.S.G. §2D1.1(c).  Adding a two level increase for possession of a firearm, Mr. Smith’s total offense level was 40 and resulted in a sentencing range of 360 months to life.

Mr. Smith was also found to be a career offender. However, the base offense level under U.S.S.G. §4B1.1 was 37, lower than his §2D1.1 range. Therefore, pursuant to §4B1.1, the district court did not use the career offender base offense level. The court, using the total offense level of 40, sentenced Mr. Smith to 360 months of imprisonment.
In 2014, Mr. Smith filed for a sentencing reduction based on 18 U.S.C. § 3582(c)(2) and Amendment 782. The district court denied his motion, and, on Friday, the Sixth Circuit affirmed in a published, per curium opinion. The Sixth Circuit held that Amendment 782 did not reduce Mr. Smith’s sentencing range because of his career offender status.
Amendment 782 reduced the base offense level for 2.35 kilograms of crack cocaine to 32. Adding the two level increase for the firearm results in a base offense level of 34 and a guideline range of 262 to 327. However, the Sixth Circuit reasoned, if Amendment 782 were in effect at the time of his sentencing, the district court would have used the career offender base offense level of 37. A base offense level 37, along with Mr. Smith’s Criminal History Category VI, results in a sentencing range of 360 months to life. The Sixth Circuit concluded, “because Amendment 782 does not have the effect of lowering the applicable Guidelines range due to the operation of §4B1.1, [Mr.] Smith is not eligible for a sentence reduction under § 3582(c)(2).

Saturday, February 20, 2016

Sixth Circuit Finds No Remmer Violation and Rejects Johnson Challenge in Death Penalty Appeal

In United States v. Taylor, a jury in the Eastern District of Tennessee convicted Defendant Rejon Taylor of carjacking and kidnapping that both resulted in death and of using a firearm to commit murder while committing the referenced offenses. The jury recommended a death sentence, which the district court imposed.
One of the more interesting issues Taylor raised on appeal was his claim that the district court should have more strenuously questioned a juror who had admittedly heard a newscast replaying certain recorded calls he made from jail, including one call where he referred to the jurors as “racist rednecks.”  After the Government attempted to introduce such statements in Taylor’s sentencing, Taylor moved for a mistrial and asked the district court to conduct a Remmer hearing and question each juror individual about their exposure to the remark.  The district court agreed with Taylor’s request to interview the jurors, and it subsequently interviewed each juror privately without counsel.  In conducting the interviews, the district court asked all but one of the jurors if they had seen the newscast and whether it would affect their decisions.
Based on the jurors’ responses, Taylor subsequently moved for a mistrial, or, in the alternative, the opportunity to question the jurors.  The district court denied both motions.
On appeal, the Sixth Circuit found that the district court did not abuse its discretion by declining to ask one of the jurors explicitly about her exposure to Taylor’s “racist redneck” remark, although it found that “an explicit question certainly would have been preferable.”  In the Court’s opinion, while a failure to conduct a Remmer hearing is “flatly unconstitutional,” the district court will have some leeway in how conducts the hearing.  In this case, the Court held the district court did not abuse its discretion because it did not ask certain questions to a particular juror.
After the Court heard oral argument on Taylor’s appeal, the Supreme Court issued its opinion in Johnson v. United States, striking down the residual clause of the ACCA as void for vagueness.  In a supplemental brief, Taylor challenged the constitutionality of 18 U.S.C. § 924(c)(3)(B) by claiming its definition of “crime of violence” was also unconstitutional under Johnson.  The Court disagreed, finding that the subsection cited by Taylor was “considerably narrower” than the ACCA residual clause invalidated by the Supreme Court in Johnson.  An important distinction for the Court was the fact that while the ACCA residual clause merely required conduct presenting “serious potential risk of physical injury to another,” § 924(c)(3)(B) required that the act “by its nature, involve[] a substantial risk that physical force against the person or property of any other may be used in the course of committing the offense.”  Further, the Court found that, unlike the ACCA residual clause, § 924(c)(3)(B) was not linked to a “confusing set of examples,” such as burglary and arson.  Finally, the Court reached its conclusion despite the fact that both the Seventh and Ninth Circuits previously struck down 18 U.S.C. § 16(b), which, as the Court conceded, contains language that is “identical to § 924(c)(3)(B) in all material respects….”
Judge White, who issued an opinion concurring in part and dissenting in part, would have reversed Taylor’s conviction and remanded the case for a Remmer hearing.  In Judge White’s opinion,  Taylor’s comment about the jury had a likelihood of affecting his sentence and required that the district court afford Taylor a meaningful opportunity to prove bias.  Additionally, Judge White would have held that § 924(c)(3)(B) was void for vagueness, vacated Taylor’s convictions, and remanded the matter for resentencing.

The Court’s decision in Taylor reflects the continuing impact of the Johnson decision.  In addition, since the Seventh and Ninth Circuits reached different conclusions about the same language, albeit in a different statute, this matter is perhaps ripe for further review by the Supreme Court.

Thursday, February 18, 2016

How Long Can the Government Watch You?: Court Upholds Lengthy Warrantless Surveillance by Pole Camera

From drones to pole cameras, law enforcement now has more non-human surveillance options at its disposal than ever before.  By extension, courts are continually attempting to define the limits of what is permissible with such searches under the Fourth Amendment.
In United States v. Houston, the Sixth Circuit affirmed Defendant Rocky Houston’s conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).  One of the main arguments Houston raised on appeal was his allegation that the District Court erred in denying his motion to suppress any evidence obtained from surveillance video taken from his property by a pole camera installed by the ATF on a public utility pole located across the street from his mobile home.  ATF agents installed the camera and conducted surveillance of Houston’s residence for ten weeks without a warrant.  During this period, the ATF obtained video evidence that Houston possessed firearms.  The ATF subsequently obtained a warrant for the surveillance after the Sixth Circuit issued its opinion in United States v. Anderson-Bagshaw, 509 F.App’x 396 (6th Cir. 2012), in which it expressed “some misgivings” about the constitutionality of long-term warrantless surveillance of a defendant’s back yard via a pole camera.
In its opinion, the Court held that no Fourth Amendment violation occurred because Houston had no reasonable expectation of privacy in video footage of his property obtained by the pole camera because it “captured the same views enjoyed by passersby on public roads.”  The Court further held that the length of the warrantless surveillance did not render the surveillance unconstitutional “because the Fourth Amendment does not punish law enforcement for using technology to more efficiently conduct their investigations.”  Although it is a painful thought, the Court reasoned that the ATF could have stationed an agent on top of the utility pole for ten weeks the same as it placed a camera there and that the Fourth Amendment should not prevent the Government from using more efficient means to conduct surveillance.
In his concurring opinion, Judge Rose, sitting by designation, did not share the majority’s comfort with the warrantless surveillance. Citing Anderson-Bagshaw and Justice Sotomayor’s concurrence in United States v. Jones, he explained that “long-term non-human surreptitious surveillance ‘is worrisome because ‘it evades the ordinary checks that constrain abusive law enforcement practices….'”  He placed particular emphasis on the fact that the pole camera conducted such lengthy surveillance of Houston’s residence.  Judge Rose further disagreed with the majority’s conclusion that the Fourth Amendment should not hamstring the Government’s use of technology by noting that it can always regain “the upper hand” by obtaining a search warrant.
In the end, however, Judge Rose concluded that any error in the warrantless surveillance was harmless because the Government had probable cause to obtain the subsequent warrant.  Additionally, Judge Rose explained that there was sufficient evidence to convict Houston even in the absence of any evidence tainted by an unlawful search.

The Court’s decision in this case raises an issue that should be of great concern to defense counsel: as advances in technology increase the Government's capacity to conduct surveillance from public areas, just how long is too long?  Could the Government document a subject's movements for a year without a warrant in the hopes of obtaining incriminatory evidence?  This will not be the last time the Sixth Circuit addresses this issue.

Wednesday, February 17, 2016

District Courts Have Wide Latitude in Reserving their Decisions on Rule 29 Motions

Although it is common, a district court's decision to reserve its ruling on a defendant's motion for acquittal pursuant to Rule 29 can prove frustrating if the defendant is forced to defend against claims that are not supported by sufficient evidence. In United States v. Robinson, the Sixth Circuit held that district courts have wide latitude in deciding whether to reserve their rulings.

In Robinson, the Sixth Circuit upheld the convictions for vote buying and conspiracy against Ruth Thomasine Robinson, the former mayor of Martin, Kentucky, (she lost her re-election bid by three votes), and against her stepson, Steven Robinson.  The Court also upheld the vote buying conviction against Mrs. Robinson's husband, James.

At trial, James Robinson moved for acquittal pursuant to Rule 29 both after the United States concluded its case and after the close of all of the evidence.  The Court reserved its ruling on his motion until after the jury returned its verdict.  The jury ultimately returned guilty verdicts for all three defendants, and the Court granted Mr. Robinson's motion for acquittal as to his conspiracy charge.

On appeal, the Sixth Circuit upheld all three convictions, holding that there was sufficient evidence for each conviction.  The Court also addressed James Robinson's argument that the District Court erred by reserving its ruling on his Rule 29 motion until after the jury returned its verdict.  In his brief, Mr. Robinson asserted that the District Court's decision prejudiced his case because it forced him to defend against the conspiracy charge and because it allegedly biased the jury by forcing it to consider the conspiracy charge.  The Court disagreed, holding that Rule 29, and its previous decision in United States v. Mathis, 738 F.3d 719, 737 (6th Cir. 2013), permitted the District Court to reserve a motion for acquittal made at the close of the United States' case.  In reaching this conclusion, the Court disagreed with Mr. Robinson's argument that Mathis only applied where the Government presented sufficient evidence to submit the case to the jury and any erroneous reservation was harmless error.  Removing all doubt, the Court held that Rule 29 and Mathis permit the district court to reserve its ruling on a properly raised Rule 29 motion for acquittal until after the jury reaches a verdict.

James Robinson also challenged the District Court's two-level enhancement of his sentence for obstruction of justice pursuant to USSG 3C1.1.  At Mr. Robinson's sentencing, the District Court imposed the enhancement based upon evidence that he "made menacing gestures and sounds" toward three government employees who were investigating perjury at the trial.  Specifically, the District Court noted that Mr. Robinson "menacingly confronted government employees outside the courthouse by making a noise to get their attention, then staring at them and puffing out his chest."  Although there was no evidence that Mr. Robinson made direct threats to the employees, the Court concluded that there was sufficient evidence to support the enhancement.

Monday, February 08, 2016

Evidence from pending state prosecution is constitutional “fair game” at sentencing

Concurrent state and federal prosecutions can force defendants to make difficult judgments about trial and sentencing strategy. The Sixth Circuit recently held that such difficult choices do not violate the Fifth Amendment.

In United States v. Alsante, the defendant faced sentencing in federal court while separate state charges were pending. The court allowed the government to introduce evidence of the alleged state crimes, and the defendant chose not make a personal statement or otherwise offer rebuttal evidence. The court departed upward from the 15-21 month guideline range, sentencing the defendant to 54 months in custody.
On appeal, the defendant argued that the introduction of evidence of his state crimes violated his right against self-incrimination. He asserted that the difficult choice between staying silent or testifying to help himself in the federal court while risking self-incrimination on the state charges created unconstitutional coercive pressure to speak. The Sixth Circuit did not agree. In the published opinion, the Court held that unlike threats of physical or economic harm, the pressure felt by every defendant when deciding whether to speak and attempt to help himself or avoid any risk of self-incrimination does not cause the type of compulsion that the Fifth Amendment prohibits.  The Court added that “the exercise of Fifth Amendment rights need not be cost-free” and that the Constitution does not forbid requiring a defendant to make difficult judgments about strategy.
The Court also rejected the defendant’s due process argument that mounting a strong defense to the evidence of his alleged state crimes might have revealed his state court trial strategy or elicited damaging information, creating an unconstitutional burden on his ability to defend the state charges. Under the lower constitutional protections at play during sentencing, the Sixth Circuit held that the due process clause requires only that the defendant have available options to speak or stay silent. The district court need not “relieve the defendant of all difficult tactical choices” to satisfy the Fifth Amendment.

Accordingly, evidence from pending state prosecutions is “fair game” at federal sentencing hearings, and defendants must continue to make difficult choices about sentencing strategy when such information is presented by the government.