Thursday, March 24, 2016

Giving the Speedy Trial Act teeth rather than lip service

For defendants, the Speedy Trial Act often seems like a hollow remedy. But today's opinion in United States v. Brown suggests that the Act may have life in it yet.

The case involved two unfortunate choices: (1) leaving the defendant out of pretrial discussions regarding scheduling, and (2) scheduling trial around everyone's conflicts but the defendant's. Ultimately, the district court attempted to accommodate both trial conflicts and the Speedy Trial Act by scheduling jury selection two weeks before the trial date, with the expiration of the speedy-trial clock occurring between those two dates.

The Sixth Circuit did not approve of this "start-and-stop" approach. The court first noted that it "will not countenance maneuvers aimed at merely paying lip service to the Speedy Trial Act's requirements." It held that the court's plan violated the spirit of the Act because---over the defendant's repeated objections---"the trial court did not intend to proceed with trial at a normal pace until after the [Act's] deadline had passed." Further, certain of the scheduling conflicts were "self-created," including the "unavailability" of a key police witness who merely had to attend certain training sessions that would make his appearance more difficult.

Ultimately, the Sixth Circuit vacated the conviction and remanded for determination of whether the dismissal of the indictment should be with or without prejudice.

Judge Gilman offers an interesting dissent that agrees with the majority's interpretation of the Speedy Trial Act, but disagrees that the defendant appropriately objected to the delay.

Monday, March 21, 2016

Choosing to punt on yet another Johnson question

For those of you preparing Johnson motions involving burglaries and burglary-like offenses, today's opinion in United States v. Quarles might help you. Or it might not. We can't know. The Sixth Circuit vacated an ACCA sentence based on a Michigan third-degree home invasion conviction under, Mich. Comp. Laws § 750.11a(4)(a), but it decided to punt on whether that offense constitutes a "generic" form of burglary, instead deciding that "this issue is best determined in the first instance by the sentencing court."

If you're playing along at home with the Johnson "is a burglary a violent felony" game, you might be curious about the Michigan statute in question. It defines third-degree home invasion as when someone "[b]reaks and enters a dwelling with intent to commit a misdemeanor in the dwelling, enters a dwelling without permission with intent to commit a misdemeanor in the dwelling, or breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a misdemeanor." The statute defines a "dwelling" as "a structure or shelter that is used permanently or temporarily as a place of abode, including an appurtenant structure attached to that structure or shelter."

So if your client entered his neighbor's yurt uninvited with the intention of singing a "nontraditional" version of the Star Spangled Banner (yes, a misdemeanor in Michigan), then Quarles will not tell you whether your client is going to stay in prison for 15 years, but you still have hope.

Saturday, March 12, 2016

What Constitutes A Waiver Of The Sixth Amendment Right To Counsel?

In the fall of 2009, Steven Pittman was under surveillance by the Nashville Metro Police Department for trafficking cocaine when he failed to use a turn signal.  He was traffic stopped at an apartment complex and confessed that cocaine was located in the center console.  The cocaine, digital scales, and a sum of currency were seized.   Following a consensual search of his residence, the officers seized two firearms.   He was federally indicted for being a felon in possession of a firearm and for distributing cocaine.   He filed motions to suppress the evidence recovered from his car and home, claiming that the officers lacked probable cause to conduct the stop and coercion regarding the signed consent form. The suppression motions were denied on the district court level. 

After eighteen months with his first appointed attorney, Pittman decided he needed a new attorney because the lawyer “raised his voice” during a meeting and disregarded his input in case preparation.  The court kept the first attorney but appointed co-counsel.  Within a few months, Pittman alleged he was given misleading information and the attorneys failed to investigate his case.  Both were permitted to withdraw and a new attorney was appointed.  After nine months of representation, this third attorney sought to be removed because he did not have the defendant’s confidence.  The motion was granted and a fourth attorney was appointed.   The fourth attorney also sought to withdraw and the court held a hearing to “get to the bottom of the problem.”  Rather than allow the attorney to withdraw, the court appointed a fifth attorney as co-counsel and informed the defendant that he had a right to appointed counsel but had no right to choose which attorney would represent him.   

A month later, the fourth and fifth attorney both sought to withdraw and the motions were granted following a status conference.  At the conference, the court concluded that Pittman had “effectively waived his right to counsel by refusing to cooperate with five lawyers.”   The judge requested that one of the previous attorneys serve as stand-by counsel, and on the morning of jury selection he asked Pittman whether he understood that he was proceeding pro se because of his problems with the attorneys.  The court also made sure he understood the charges and the problems with self-representation.    The jury found Pittman guilty and prior to sentencing, the stand-by counsel sought to withdraw.  New stand-by counsel was appointed and he was sentenced to 235 months imprisonment, the low end of his guidelines range. 

With the assistance of newly appointed counsel, Steven Pittman appealed  the district court’s ruling on the suppression matters, the exclusion of expert testimony, the waiver of right to counsel colloquy, and challenged whether his Sixth Amendment right to counsel was violated when the trial court declined to appoint a sixth attorney before trial.  In United States v. Pittman, 6th Cir., 15-5085, the Sixth Circuit held that none of these challenges held merit.   A review of their right to counsel analysis follows. (Please refer to the published opinion for the Court's analysis concerning the suppression motions and exclusion of expert testimony).

Relying upon their previous decisions in  United States v. Coles, 695 F.3d 559 (6th Cir. 2012)  and United States v. Green, 388 F.3d 918 (6th Cir. 2004), the Sixth Circuit found that the district court justifiably decided that Pittman’s conduct showed he had given up his right to counsel.  In fact, after Pittman’s fourth attorney asked to withdraw, the district court denied the request and warned the defendant that he had “no right to continue auditioning new counsel until he found one he liked.”   The Sixth Circuit concluded that at that point, the stakes were clear.  Pittman could keep his current counsel, hire one at his own expense, or represent himself.    Though defendant argued that he never wished to represent himself , the appellate court reasoned “the absence of an explicit request does not prove the absence of an implicit decision.”

Pittman also argued that the choice between self-representation and appointed counsel must be an informed one.  He alleged that the  district court did not administer the standard colloquy used to inform pro se defendants of the difficulties of self-representation until the morning of jury selection.  Pittman argued it was “too little, too late.”  The Sixth Circuit agreed that he had a point but also found different requirements come into play when a defendant gives up his right to counsel by rejecting his appointed attorneys.   The record clearly portrayed the district court giving defendant plenty of information about the risks of self-representation.  Citing United States v. Ross, 703 F F.3d 856, 868 (6th Cir. 2012) the Sixth Circuit  found that when a “defendant waives his right to counsel through dilatory conduct,” “the Constitution does not require a court to engage in an extended discussion about the repercussion of the waiver.”     

Pittman argued that United States v. Clemons (173 F.3d 856, at *4 (6th Cir. 1999)(an unpublished table disposition) proposed that courts must administer the Bench Book colloquy to explicitly inquire whether a defendant understands the risk of self-representation.  However, the Sixth Circuit noted that Clemons contradicted with United States v. Coles, 695 F.3d 559 (6th Cir. 2012), a published decision, that “left it to district court judges to determine how best to deal with a defendant, who by his or her conduct, has waived the right to counsel.”

Friday, March 11, 2016


United States of America v. Kimberly Taylor, 6th Cir. 15-5930, presents a “novel question” regarding whether §1B1.10 denies a district court authority to reduce a defendant’s sentence below his/her amended guidelines range for departures or variances other than a substantial assistance departure.  

Early 2012, Kimberly Taylor was sentenced to 72 months imprisonment after pleading guilty to a methamphetamine conspiracy, and aiding and abetting by maintaining a place for the purpose of manufacturing methamphetamine.   Originally, her guideline range was 108-135 months imprisonment, with the total offense level at 31 and a criminal history category of I.

 At sentencing, the United States moved for a downward departure based on her substantial assistance and recommended a sentence as low as 87 months, 19 percent below the bottom of the guidelines range.   Defense also moved for a downward variance requesting a sentence of 48 months.   Both motions were granted and Kimberly Taylor was sentenced to 72 months imprisonment.  At sentencing,  the district court failed to specify how the reduction was attributable to each motion.   As noted by the Sixth Circuit, the reduction reflected a 33 percent drop from the bottom of the guideline range (108 months). 

After Amendments 782 and 788 to the Sentencing Guidelines became effective, Kimberly Taylor moved for a sentence reduction pursuant to 18 U.S.C. § 3582(c) and Amendment 782.  She argued that her new guideline range was 87 months to 108 months based on the new total offense level of 29 with a criminal history category of I.  Since her original sentence was reduced by 33 percent, she requested the same reduction to the amended guideline level.   Yet, the district court only applied a 19 percent reduction based on her substantial assistance and reduced her sentence to 70 months.    Subsequently, the United States and Defendant filed a joint motion for reconsideration asking the court to apply the 33 percent reduction. 

The district court denied the motion providing that “because U.S.S.G § 1B1.10(b)(2)(B) is limited to departures awarded pursuant to substantial assistance motions, and because variances and non-cooperation departures are not awarded ‘pursuant’ to such motions, courts lack authority under §3582(c)(2) to grant the relief requested by the present motion.”  

The Sixth Circuit found this issue as a “novel question.”  The Court examined the changes to §1B1.10 over time and found the guidelines “deny a district court authority to reduce a defendant’s sentence below her amended guidelines range except where such a reduction is based on her substantial assistance.”   The Sixth Circuit also reviewed the stance of other circuits and ultimately affirmed the   district court’s denial of the joint motion for reconsideration of Kimberly Taylor’s sentence reduction under §3582(c).