Friday, December 22, 2017

Establishing the fundamentals of VICAR racketeering prosecutions

At the government's request, the Sixth Circuit has published its previously unpublished decision in United States v. Odum, an appeal (after a multi-defendant jury trialby two members of the Phantom Motorcycle Club. The decision is important because it sets forth several basic propositions of law regarding violations of the violent crimes in aid of racketeering activity statute, 18 U.S.C. § 1959 (aka, "VICAR")

The government frequently seeks to prosecute these types of "outlaw motorcycle clubs" for racketeering offenses by arguing the "club" is a "criminal organization" for purposes of the criminal RICO statute.

"An advantage of VICAR over RICO," according to the National District Attorney Association, "is that VICAR requires only one criminal act to be proven, provided that it is violent and is carried out for personal monetary gain or for status within a gang."

In moving to publish, the government argued that the Odum opinion establishes "two significant points" about VICAR for which there was previously no published law in the Sixth Circuit.

First, the opinion relied on a Second Circuit case (dating back to 1992) to set forth five elements the government must prove to establish a VICAR offense:
  1. that the Organization was a RICO enterprise,
  2. that the enterprise was engaged in racketeering activity as defined in RICO,
  3. that the defendant in question had a position in the enterprise,
  4. that the defendant committed the alleged crime of violence, and
  5. that his general purpose in so doing was to maintain or increase his position in the enterprise.
Second and likely the primary reason the government sought publication is that the court held that the government does not have to prove that the defendant actually knew that the enterprise was engaged in racketeering to establish a VICAR offense. The court reasoned that "grafting [a] knowledge-of-racketeering requirement onto the statute would allow acts contemplated by VICAR to escape prosecution under the statute." For example, if so interpreted, "VICAR might not cover an individual who commits a violent crime as a part of gaining entry to a gang but who does not have specific knowledge of the group's racketeering activities." Additionally, the court emphasized that "[s]everal courts have explicitly applied RICO's 'liberal construction' rule to VICAR, as VICAR was enacted for a similar remedial purpose."

As an interesting aside, this is the third time since I starting writing for this blog a couple of years ago where the U.S. Attorney's Office for the E.D. Mich. has moved to publish favorable decisions (see also here and here). This may be a tactic to borrow given the frequency of unpublished decisions in the Sixth Circuit.

Wednesday, December 20, 2017

Mandates matter

Today's opinion in Luke Patterson's second appeal showcases an unfortunate situation in which the appeal mandate made a big difference. The case breaks down into four rounds.

In Round One – Patterson's initial sentencing – he avoided the 15-year mandatory minimum under the Armed Career Criminal Act because the trial court refused to treat his prior Ohio aggravated burglary convictions as "violent felonies."

But in Round TwoPatterson's first appeal  the government cross-appealed, and the Sixth Circuit ultimately agreed that Patterson should've been sentenced under ACCA. The court's mandate said that it "reverse[d] the ruling that Patterson did not have three previous convictions for a violent felony, vacate[d] Patterson's sentence, and remand[ed] for re-sentencing."

In Round Three – Patterson’s re-sentencing – Patterson argued that his three offenses should instead be treated as one for purposes of ACCA. But the trial court felt itself constrained by the Sixth Circuit’s mandate, and imposed the 15-year mandatory minimum.

Which brings us to Round Four – Peterson's second appeal, which prompted today's decision in United States v. Patterson, No. 17-3706

In this second appeal, Peterson argued that the trial court erred in refusing to consider his "single offense" argument on remand. But the Sixth Circuit disagreed, relying on the two components of the "mandate rule" from United States v. O'Dell, 320 F.3d 674 (6th Cir. 2003)
  1. The mandate from the first appeal permitted only a limited remand, not a remand where Patterson could again challenge his ACCA designation.
  2. Patterson could not re-raise on remand an issue ripe for review during his initial appeal.
The Sixth Circuit, "out of an abundance of caution," also decided that the "single offense" argument lacked merit.

The court's strict application of the rule from O'Dell highlights the (somewhat daunting) importance of raising issues on appeal that may be at play if the case is remanded.

Saturday, December 16, 2017

How can municipalities collect unpaid taxes on property subject to criminal forfeiture?

What happens when a municipality wants to collect unpaid taxes on property subject to criminal forfeiture?

The Sixth Circuit dove into that surprisingly complicated question this week in United States v. Hall, No. 16-6512.

Knox County, Tennessee, asserted a first-priority lien for delinquent property taxes on George Hall's property after he agreed to forfeit the property as obtained with the ill-gotten proceeds of an illegal gambling scheme. The County asked the court to, among other things, (1) hold a hearing to adjudicate the County's interests, (2) order the interlocutory sale of the property, and (3) delay the final order of forfeiture until the property could be sold.

The government told the court that its standard practice was to pay these sorts of taxes but only up until the date the government took title to the property. The government objected to delaying entry of the final order (and to the levying of taxes during any such delay), arguing that it would allow the County to circumvent the ban on local municipalities levying taxes on federal properties.

The district court denied the County's requests altogether -- for lack of standing. First, it held that the County lacked standing to ask for ongoing taxes because as soon as the court entered the final forfeiture order, the County had no legally cognizable interest in the taxes accruing on property owned by the federal government. As to back taxes, the court also held that the County lacked standing because the government had already promised to give the funds to the County, and thus the court couldn’t offer any redress to the County.

The Sixth Circuit wasn’t impressed, finding that the "district court’s approach falter[ed] on several levels." Among other things, the County's assertion of an interest in tax revenue was enough to establish standing. Moreover, contrary to the district court’s conclusion, "any number of court orders would likely redress the injury Knox County would suffer if its tax lien were not satisfied."

The Sixth Circuit pointed to a better approach: "Rather than resolving this case at the jurisdictional stage, the district court and the parties should have followed the procedures set forth in 21 U.S.C. § 853(n) and the Federal Rules of Criminal Procedure" (particularly Rule 32.2).

Ultimately, the Sixth Circuit required a re-do, vacating the forfeiture order and remanding the case for further proceedings to determine "the scope of Knox County's legal interest." The court also concluded, however, that the district court did not abuse its discretion by refusing to require the interlocutory sale of the property. It emphasized the wide discretion granted to district courts in determining whether such sales are appropriate.

Along the way to its decision, the Sixth Circuit laid out several substantive and procedural tips on how this process should proceed, making this opinion a useful resource for anyone faced with a similar situation.

Photo courtesy: 401(k) 2012

Friday, December 15, 2017

Destruction of evidence and private actors

The defendants in United States v. Folad rigged ATMs to spit out $20 bills whenever a $1 bill was requested.  They obtained for $600,000 pursuant to this scheme.  They were caught and prosecuted in the Middle District of Tennessee. 

The issue on appeal related to the destruction of evidence - after the scheme was found out, the bank replaced most of the ATMs with other machines.  This, the defendants claimed, violated Due Process, as the machines contained evidence which would have exonerated them. 

The Sixth Circuit found that, because the bank was a private actor, and was not goaded by the Government into destroying the evidence, there was no Due Process claim.  "No precedent from the United States Supreme Court or this Court supports the idea that the government violates a criminal defendant’s due process rights when a private party, with no support from the government and no inducement by the government, fails to preserve relevant evidence."

The defense, citing to a Ninth Circuit case (Miller v. Vasquez, 868 F.2d 1116, 1120 (9th Cir. 1989)), argued that "bad faith" of a private actor in destroying exculpatory evidence could amount to a Due Process violation.  Interestingly, the Court did not dismiss this theory, but held that the defendants had not proven that bad faith occurred in this case.

Thursday, December 07, 2017

Don't Bring a Gun to a Felony

Consider the following interaction between three people: Darryl Jackson (the defendant); Cecil (the confidential informant), and Peter (the undercover police officer):

[Darryl emerges from a nearby house]

Cecil: Hey, Darryl, I’d like to buy a gram of heroin.
Darryl: Sure thing. That will be $120.

[After Darryl hands Cecil the heroin]

Cecil: Hey, I’m in a bit of a pickle. Do you know where I can pick up a pistol?
Darryl: Not really… Well, I might have one I can sell you.
Cecil: I’ll buy it from you for $300.
Darryl: How about $400?
Cecil: Deal.

[Darryl walks to a different house down the street and returns a few minutes later. Darryl and Cecil exchange the pistol for cash and depart.]

[A few days later]

Darryl: Hey, Cecil, I have another gun for sale for $500.
Cecil: Sure, let’s meet where we met up last time.

[The two meet and make the transaction.]

Cecil: Hey, I know someone else who wants to buy some heroin. Are you interested?
Darryl: Sure.
Cecil: Great, let’s meet at that car over there.

[Darryl walks to get heroin. Cecil leaves the area and gets into the police car with Peter. A few minutes later, Darryl gets in the car.]

Darryl: Here’s your half-gram of heroin. That’ll be $45.
Peter: Here you go. Thanks.

[End Scene.]

What do you think? Did Darryl use or possess those guns in connection with the drug transactions? That was the question the Sixth Circuit had to answer in United States v. Jackson.

U.S.S.G. § 2K2.1(b)(6)(B) requires increasing the offense level “[i]f the defendant . . . used or possessed any firearm or ammunition in connection with another felony offense.” To answer that question, the Sixth Circuit helpfully outlined the typical circumstances where the enhancement applies:
  • Fortress: When guns are in close proximity to the drugs, and so the judge can infer that the defendant kept the guns nearby to protect the drugs or to intimidate buyers.
  •  Pot Sweetener: When guns and drugs are part of a package deal. For example, if the sale is for 60 pills and a shotgun in exchange for $600, instead of $400 for the pills alone.
  • Currency: Using firearms as currency in exchange for drugs. For example, 1 gram of heroin in exchange for one rifle.

The majority of the panel concluded that the events described above did not fit within any of these three theories. First, the majority asked, How is the gun offering any offensive or defensive protection down the street? Not much. There was also no evidence Darryl brought a gun and  drugs to the second meeting either. As far as anybody knew, the guns and drugs were always separated or even in different houses.

Second, even though the gun and drugs were technically present during the second meeting, Darryl had already sold the gun to Cecil, and so there was no risk he would use the gun to facilitate the drug sale. 

Third, the guns never sweetened any of the deals. Each sale was isolated: two sales where Darryl received cash in consideration for heroin; and two sales where guns were exchanged for cash. The separate sales for separate consideration could hardly be part of the same sweet pot.  Nor did Darryl and Cecil ever use the guns as currency.

Because Darryl did not come armed during the sales, store guns and drugs together, trade guns for drugs, or negotiate the gun and drug sales together, § 2K2.1(b)(6)(B) did not apply to him. That finding of fact has tremendous consequences for Darryl; his guidelines range dropped from 110-137 months to 77-99 months. If he receives a 10-month downward variance as he did before, he could serve 33 fewer months in prison. That's nearly three years. In sentencing, findings of fact matter.

Onward! The Sixth Circuit Denies Rehearing En Banc in Raybon

Practitioners know, but the public may not, that some of the most consequential decisions courts make are not reported in the news or even in publicly available opinions. Indeed, some of these decisions don’t even come with much explanation.

Many federal prisoners who were sentenced as career offenders when the guidelines were still mandatory have been trying to get courts to consider whether their sentences are unconstitutional according to the rule announced in Johnson v. United States. Johnson held that the so-called residual clause of the Armed Career Criminal Act is unconstitutionally vague. The Supreme Court said that rule is retroactive, meaning that those who were serving sentences imposed because of the ACCA’s statutory mandatory minimum could have re-sentencing hearings. Although the Court held that Johnson’s rule did not apply to those who were designated career offenders under the advisory guidelines, the Court did not address the application of Johnson to the mandatory guidelines.

In August, the Sixth Circuit held that these prisoners sentenced during the pre-Booker years under mandatory guidelines could not use Johnson to get new sentences because their petitioners were not “timely.” A § 2255 motion is timely when filed within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). The court reasoned that these prisoners, like Jerome Raybon, who filed their § 2255 petitions within one year of the Johnson opinion had filed too soon because the Supreme Court has not yet said explicitly that Johnson’s holding applies retroactively to the mandatory guidelines. (Full disclosure: my office represents Mr. Raybon.)

Mr. Raybon filed a petition for rehearing en banc. Since that time, many prisoners who happen to reside in the Sixth Circuit have been denied the opportunity to litigate the legal questions raised in their petitions. The First Circuit has criticized the Sixth Circuit’s approach. But, on December 6, 2017, the Sixth Circuit denied Mr. Raybon’s petition because less than a majority of the judges voted to hear the case en banc.

That small decision carries significant consequences for prisoners in the Sixth Circuit. Attorneys representing these people should continue to argue that Raybon was wrongly decided. Maybe the full court will address the question at some other time. Until then, however, Raybon remains the law in Michigan, Ohio, Tennessee, and Kentucky unless the Supreme Court intervenes. The men and women sentenced pre-Booker must wait patiently in prison until that time if it comes at all.

Wednesday, December 06, 2017

Prosecution's use of cell-site location analysis upheld

Last week, the Sixth Circuit, on the government's motion, published the previously unpublished decision in United States v. Pembrook (which -- full disclosure -- I worked on). There are issues preserved for Supreme Court review -- claims related to Carpenter and Dimaya -- so I won't go into too many details. But because of the government's request to publish, I think it's useful to flag the case here.

In a nutshell, Pembrook was a four-defendant consolidated appeal in a Hobbs Act robbery case, with stacking 924(c) counts. Each defendant received 33 years in prison. A big part of the government's case was historic cell-site location information (from a "tower dump") that prosecutors used to argue that the defendants traveled from Philadelphia to the West-side of Michigan (where one robbery occurred) and then to the East-side of Michigan (where a second occurred) before returning to Philadelphia.

We challenged the reliability of the cell-site analysis on appeal, citing among other things the Sixth Circuit's criticism of cell-site analysis in United States v.Reynolds. But the court distinguished the type of analysis criticized in Reynolds by emphasizing that the cell-site analysis in Pembrook's case spanned "a much larger geographical area" -- i.e., state-to-state, East v. West side of Michigan. In the court's view, "[a]t this level of geographic distance, cell-site analysis is established as reliable."

The motion to publish argued that "[l]itigants have inundated federal courts in this circuit with claims challenging the propriety of testimony about cell site location analysis." The motion provides a snapshot of how the government may try to use this case in the future. Particularly, the prosecutor asserted that the court found "cell site analysis—generally—is sufficiently reliable to satisfy Daubert and Rule 702" and "is objectively tested and subject to peer review, and the absence of an error rate is irrelevant." The prosecutor added that "[t]he real question . . . is whether cell site location analysis is reliable in a particular case."

So at the end of the day, litigators still need to test the reliability of cell-site analysis in each particular case. But this opinion underscores, as the Supreme Court did recently at oral argument in Carpenter, that the ubiquity of cell phones and location data provides the government with a potentially powerful tool against criminal defendants.

No Right to Try

The Immigration and Nationality Act is a swampy mess of numbers, letters, and Roman numerals big and small. Trying to make sense of it is a challenge. For that reason, many people who have been served with a notice of removal retain counsel to guide them through the removal, a.k.a. deportation, proceedings.

When facing the possibility of deportation after serving one year in prison for being a drug user who possessed a firearm, Emilio Estrada decided to retain a lawyer to help him navigate the proceedings and to help interpret INA alphabet soup. Unfortunately, the lawyers he retained did not advise him that green-card holders who have been convicted of an aggravated felony, see 8 U.S.C. § 1101(a)(43)(E)(ii), can beg an immigration judge to allow them to remain in the United States, see id. § 1182(h) (INA § 212(h)). That provision of the INA permits an immigration judge to allow an immigrant to remain in the United States if his deportation would cause extreme hardship to his spouse, child, or parent who is a U.S. citizen or lawful permanent resident. The immigration judge did not inform Mr. Estrada of this fact. Mr. Estrada’s lawyer didn’t either. Instead, Mr. Estrada’s counsel admitted to all facts in the removal order, and Mr. Estrada was deported to Mexico.

Six years later, federal agents found Mr. Estrada in the United States, and he was charged with two counsel of illegal reentry following deportation. Mr. Estrada decided to put up a fight. He filed a motion to dismiss the indictment, collaterally attacking the fundamental fairness of his earlier removal proceedings.

To succeed, Mr. Estrada had to demonstrate all three of the following: (1) that he exhausted all available administrative remedies; (2) that the deportation proceedings deprived him of the opportunity for judicial review; and (3) that the entry of the removal order was fundamentally unfair. 8 U.S.C. § 1326(d). A fundamentally unfair removal hearing is one that deprives the deportee of due process, i.e., life, liberty, or property, and resulted in prejudice.

The Sixth Circuit held that Mr. Estrada could not prevail because the immigration judge and his attorney did not deprive him of any life, liberty, or property interest because the relief provided by § 212(h) is just discretionary. In essence, § 212(h) grants only an opportunity to try, not an affirmative right to remain. But, unlike the Second and Ninth Circuits, the Sixth Circuit does not believe the right to try is a constitutionally protected interest. Because Mr. Estrada was not deprived of life, liberty, or property, the court reasoned, the immigration judge did not deprive him of due process. The court also held that Mr. Estrada had no constitutional right to accurate and complete attorney advice either.

Unless the Supreme Court takes up this question that has caused a circuit split, Mr. Estrada will likely be convicted, sentenced to prison, and then deported. What hardship may befall his family members if he is deported remains unknown.

Court enforces plea waiver of future retroactive sentencing reductions

Regular readers of this blog will know that the Sixth Circuit has a history of broadly construing appeal waivers in plea agreements. Consider our posts on United States v. GriffinUnited States v. Keller, and United States v. Luebbert.

This week's published decision in United States v. Clardy is in the same vein as those decisions but with a twist --  rather than challenging his appeal waiver, the defendant challenged the waiver of his right to take advantage of a sentencing reduction under 18 U.S.C. § 3582(c)(2).

Unfortunately for Clardy, his plea agreement explicitly referred to § 3582(c), stating that he "knowingly waives the right to challenge the sentence imposed in any collateral attack, including, but not limited to, a motion brought pursuant to 28 U.S.C. § 2255 and/or § 2241, and/or 18 U.S.C. § 3582(c)."

Clardy argued that this waiver was ambiguous for three reasons: (1) it was titled "Waiver of Appellate Rights," (2) it confusingly referred to a § 3582(c) motion as a "collateral attack," and (3) authority to reduce sentences belongs to the district court so defendants can't waive it. The Sixth Circuit rejected each argument.

This decision serves as an important reminder that defense attorneys need to carefully explain all provisions in a plea agreement to clients. 

I'd note also that the decision is limited to those situations where § 3582(c) is explicitly named in the plea agreement. If the text of a plea agreement never mentions § 3582(c), the defendant should still maintain the ability to take advantage of a subsequent change in the sentencing law that is made retroactive. In such cases, the plea agreement is at best ambiguous with respect to whether the defendant is waiving this important right, and any ambiguity in the agreement is construed against the government. See United States v. Goodloe, 388 F. App'x 500, 503 (6th Cir. 2010) (refusing to construe appeal waiver not explicitly naming § 3582 as sufficient to waive a defendant's right to file a § 3582(c) motion); United States v. Monroe, 580 F. 3d, 552, 556–57 (7th Cir. 2009) (same); United States v. Chavez-Salais, 337 F.3d 1170, 1173 (10th Cir. 2003) (same).

Thursday, November 30, 2017

For purposes of issuing a certificate of appealability, the Sixth Circuit applies Slack v. McDaniel to determine if a habeas petition states a “valid claim” of the denial of a constitutional right.

          The Supreme Court held in Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added) that when a habeas corpus petition is denied on procedural grounds without reaching the underlying constitutional claims, a certificate of appealability (COA) should issue when the petitioner makes a showing that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” In Dufresne v. Palmer, the Sixth Circuit addressed the meaning of Slack’s “valid claim” language.
          The district court denied Mr. Dufresne’s habeas petition (28 U.S.C. §2254) because two of his claims were procedurally defaulted and he was not entitled to relief on the merits of the remaining three claims. Mr. Dufresne filed a notice of appeal which the Sixth Circuit construed as an application for a COA under Fed.R.App.Proc. 22(b)(2). The Sixth Circuit said it could not overturn the denial of a COA unless reasonable jurists could debate whether it “states a valid claim of the denial of a constitutional right.” Consequently, it had to determine what constituted a “valid claim” under Slack.
To meet Slack’s standard the Sixth Circuit said a habeas petitioner cannot simply allege claims that are “arguably constitutional,” those claims “must also be arguably valid or meritorious.” (Sixth Circuit’s emphasis). The Sixth Circuit found such an approach consistent with the text of the Anti-Terrorism and Effective Death Penalty Act (AEDPA – see 28 U.S.C. §2253(c)(2) and §2254(d)) and Slack’s interpretation of its meaning. Since a COA can be issued only if the habeas petitioner makes a substantial showing of the denial of a constitutional right, a circuit court’s inquiry goes to the procedural component of the district court’s decision as well as the underlying merits. In addition, Slack’s standard is framed in terms of what “jurists of reason would find … debatable.” The Sixth Circuit cautioned against a full-blown merits inquiry at the COA stage. After examining the decisions of other circuit courts of appeals the Sixth Circuit concluded, “All that matters for our purposes is that a modest assessment of the merits of the claim is required.” The Sixth Circuit made that assessment of Mr. Dufresne’s claims and denied his application for a COA.



Wednesday, November 15, 2017

Johnson is still dividing the Court

Much has changed since the Supreme Court issued its Johnson decision in June 2015, but one thing remains the same: we still have no comprehensive understanding of how the decision applies, and the law surrounding the Armed Career Criminal Act remains as murky as ever. Two decisions in the last week at the Sixth Circuit exemplify this murkiness, revealing stark divisions within the appeals court and unusual allegiances among the judges.

Perhaps most notably, last Friday's decision in United States v. Harper saw a panel of judges reluctantly following---then lambasting---the Court's out-of-the-blue Verwiebe decision, which had held that the Supreme Court's decision in Voisine negated a decade of ACCA jurisprudence prohibiting the use of reckless conduct as an ACCA predicate. In Harper, Judge Kethledge noted that the panel was bound by Judge Sutton's decision in Verwiebe, but then devoted the large majority of the Harper decision to "explain[ing] why, in our view, the decision in Verwiebe was mistaken." The fact that the panel chose to publish the Harper decision criticizing the (also published) Verwiebe decision may indicate that at least these three judges would be inclined to grant en banc review of Verwiebe.

We see this same inter-chambers conflict in a single decision in today's decision in Brian Williams v. United StatesThere, a three-judge panel managed to produce a majority opinion, a concurrence, and a dissent, all on the same subject as as Verweibe and Harper: what constitutes "violence." Specifically, the panel addressed Ohio's felonious assault statute, which potentially allows conviction "based on a showing of purely mental injury." In a 2012 published decision, the Court had determined that the statute did qualify as a violent felony; however, in a 2016 order, the Court granted Mr. Williams leave to file a second-or-successive petition because "much has changed in the four years" since the earlier decision, and ordered the district court to determine whether the statute was still categorically violent under the ample new precedent. The district court found no reason to upend the existing precedent. Neither did the Sixth Circuit. Judge Moore's majority opinion held that the question was "of little import here," because the prior precedent addressed the elements clause rather than the residual clause of the ACCA, and thus "the holding of Johnson [] is not implicated in this case." Judge Moore concurred, noting that she agreed that the panel was bound by prior published precedent, but arguing that the prior published precedent was wrong and should be reconsidered en banc.

Judge Merritt dissented, saying what we're all thinking at this point:

"Perhaps this confusion is not surprising because, as Justice Breyer said, the Armed Career Criminal Act creates a 'time-consuming legal tangle.' Justice Alito agreed and referred to the analytical process simply as a 'mess.'"

Whatever analytical "mess" these decisions point to, it is helpful to remind ourselves that there are very real consequences. In both cases, the individuals raising these arguments will spend many more years in prison as a result of these decisions.

Tuesday, November 07, 2017

When is a Special Supervised Release Condition Appropriate?

United States v. Blake Childress
In 2012, Blake Childress pled guilty to being a convicted felon in possession of a firearm. At the time of sentencing, he had a pending state incest charge. After his federal sentencing, he was tried and convicted on the incest charge.  However, the Tennessee Court of Criminal Appeals reversed the incest conviction and remanded for a new trial.  He pled to a reduced charge of aggravated assault.  Based on his guilty plea, the federal district court held a hearing on the probation officer’s petition to modify Childress’s supervised release order.   The district court subsequently added two modifications to his special conditions of supervised release, including a psychosexual assessment.   Blake Childress appealed the modification that required him to submit to a psychosexual assessment because he was merely convicted of aggravated assault.

The Sixth Circuit reviewed the imposition of the special supervised release condition from a procedural and substantive dimension.  The procedural dimension requires the district court to state in open court at sentencing the reasons and rationale for the imposition of the special condition.  This dimension was not challenged by Childress. 

From the substantive dimension, the condition must be reasonably related to the factors applicable to supervised release as detailed in 18 U.S.C. § 3583(d)(1) and must involve no greater deprivation of liberty than reasonably necessary to comply with the sentencing purposes. 18 U.S.C. § 3583(d)(2).  Finally, the special condition must be consistent with any pertinent policy statement. 18 U.S.C. § 3583(d)(3). 

Childress challenged the condition from the substantive dimension and disagreed with the district court’s conclusion that the psychosexual assessment was reasonably related to “the history and characteristics of the defendant.”  However, the Sixth Circuit upheld the district court’s conclusion that his history and characteristics warranted imposing a sex-offender evaluation.  The Sixth Circuit relied on United States v. Carter, 463 F.3d 526 (6th Cir. 2006) and held that “the question is not whether the title of the offense denotes a sexual offense but whether the defendant ‘actually committed the offense…in a sexual manner.’”

Friday, November 03, 2017

We've joined Twitter! Hello 21st Century.

As Oprah famously posted in her first tweet:
The Sixth Circuit Blog is officially joining the Twitter-verse, under the handle "6thCirBlog."
If you are a Twitter person, please consider following us or tweeting to us. Jonathan Zittrain, Harvard law professor, once remarked, "The qualities that make Twitter seem inane and half-baked are what makes it so powerful." We just hope to expand the conversation about criminal appellate law in the Sixth Circuit. 

We'll primarily be posting links to our summaries and analysis of Sixth Circuit published criminal opinions. We may also occasionally share news of note to criminal appellate practitioners in the circuit. 

Nothing will change about the blog or the RSS feed. So if you sympathize with former Daily Show host Jon Stewart, who said about Twitter -- "I have no idea how it works, or why it is" -- then you have no need to worry.

Wednesday, November 01, 2017

Evenly divided Sixth Circuit allows 10-year mandatory minimum to stand for minor player in drug conspiracy

This week in United States v. Gibson, the judges of Sixth Circuit, after hearing en banc argument, announced that they were evenly divided on the question whether a co-conspirator who only directly handled a very small amount of drugs should be held accountable for the total amount of drugs involved in the entire conspiracy. That means that, because the original panel decision affirmed the co-conspirator's sentence and conviction, the sentence and conviction remain affirmed.

The background of the case is laid out in Laura's post from April last year (The en banc reviews keep coming!):
Though he only made three small sales of meth, Mr. Gibson pled guilty to conspiracy to distribute meth that involved fifty grams or more of methamphetamine. This triggered the ten-year mandatory minimum. Mr. Gibson made Alleyne arguments as well as Guideline arguments, both of which were rejected by the Sixth based on existing precedent. Judges Daughtrey, Rogers, and Cook were not entirely happy with the result. Judge Rogers wrote:

"The result in this case may appear unjust. Mandatory minimums for limited-amount co-conspirators do not serve the drug statute's underlying purpose of more severely punishing larger-amount drug dealers. Nonetheless, absent a change in our law from the en banc court, the Supreme Court, or Congress, we are bound by our precendents." 
Judge Rogers also noted the Circuit split on the issue.
Robert had noted in a comment to that article:
Three issues to watch with this case: (1) en banc review is rare, but all the more so in cases (such as this) where plain error review apparently applies; (2) Gibson received the mandatory statutory minimum for the offense to which he pled; and (3) the Government argued that further review was unnecessary because current prosecutorial guidelines prescribe charging an individualized drug quantity and seeking a jury instruction for a finding of an individualized drug quantity. ...
Frustratingly, we don't get to know how the vote count went down, or why exactly the court was split on the case. But I have to imagine that the concerns Robert raised might have had something to do with it, so it would seem that this issue is still one we need to watch out for and preserve.

Monday, October 30, 2017

Tapia applies to revocation sentences

In United States v. Rucker, the defendant had his term of supervised release revoked  because he couldn't stop using methamphetamine.  The judge imposed a sentence of 24 months incarceration upon revocation, based in part because the Bureau of Prisons would not allow Rucker to get intensive drug treatment unless he received a sentence of 22 months or more.   The Court found that. pursuant to the Supreme Court's decision in  Tapia v. United States, 564 U.S. 319, 332 (2011), this was an improper basis for sentencing.  The Court rejected the Government's argument that the language of18 U.S.C. § 3582(a) did not apply.  The Court held that "by its plain terms, § 3582(a) applies not only when a district court determines “whether to impose a term of imprisonment,” but also “in determining the length of the term[.]”   The Court therefore remanded for resentencing.

Friday, October 20, 2017

Poisoning is a Use of Force and Recklessness Is Sufficient, So Sayeth Judge Sutton

In an amended decision analyzing the federal assault statute, 18 U.S.C. 113, the Sixth Circuit concluded the offenses of assault with a deadly weapon - 113(a)(3) - and assault resulting in serious bodily injury - 113(a)(6), are both crimes of violence under the Guidelines. United States v. Verwiebe, Case No. 16-2591 (6th Cir. Oct. 20, 2017). The original decision issued in late September.

Of particular note, opinion author Judge Sutton concluded that a crime that already includes some use or threat of force automatically becomes an offense involving violent force (and satisfying the force/elements clause) when a dangerous weapon is involved. Put another way, a dangerous weapon element, under this opinion, seems to make the offense a violent use of force offense per se. Specifically, the Court noted that 113(a)(3) "involves violent force because it proscribes common law assault with a dangerous weapon, not simple common law assault."

In looking at the stickier question of serious physical harm, the Court reasoned that the language itself is all that is required. The Court opined, "How could it be possible to suffer serious bodily injury without force capable of producing such injury?" The Court reached that conclusion, in part, by referring to their pre-Johnson decisions in United States v. Anderson, 695 F.3d 390, 401 (6th Cir. 2012), and United States v. Evans, 699 F.3d 858, 864 (6th Cir. 2012).

The Verwiebe decision is particularly significant, because it holds that even indirect force can be sufficient to satisfy the definition of crime of violence in the Guidelines. The well-worn scenario used by many defense attorneys is that of a poisoner - the defendant violates the statute by poisoning another but is not using violent physical force to do so, rendering the statute more broad that the crime of violence (or ACCA) definition. The Sixth Circuit disagreed. Instead, it reasoned, "The 'use of physical force' is not the drop of liquid in the victim's drink; it is employing poison to cause serious bodily harm." As Judge Sutton has noted in other violent felony/ crime of violence predicate opinions, the Court is not interested in every conceivable scenario: "Sentencing law does not turn on such fine, reality-defying distinctions."

Not to bury the lead, but this decision also includes a very important holding regarding the requisite mens rea of predicates. The Sixth Circuit has traditionally recognized that a crime involving only recklessness is not a crime of violence under Guideline 4B1.2. United States v. McFalls, 592 F.3d 707, 716 (6th Cir. 2010). However, the Verwiebe Court concluded that McFalls is presumptively overruled by the Supreme Court's decision in Voisine v. United States, 136 S. Ct. 2272, 2280 (2016). The Voisine decision considered the use of physical force required for a misdemeanor domestic violence offense as defined in18 U.S.C. 921(a)(33)(A)(ii). The Sixth Circuit read Voisine to stand for the proposition that a use of force can be satisfied by recklessness alone and that its conclusion "applies with equal force to the Guidelines."The Sixth Circuit's opinion also outlined the Circuit split on this issue.

Friday, October 13, 2017

News Flash: A Defendant has a Due Process Right to Receive a Sentence Based Upon Accurate Information.

In United States v. Earnest Adams, the Sixth Circuit confirmed the obvious: courts should sentence defendants based upon credible information.  Ernest Adams is a seventy-one-year old opiate addict with a lengthy criminal history (approximately twenty prior convictions) and an even lengthier history of drug abuse.  Mr. Adams ultimately received a five year federal sentence an a three year term of supervised release.  After repeatedly testing positive for opiates, the United States Probation Office ultimately recommended that the District Court revoke Mr. Adams's supervised release.  Mr. Adams subsequently admitted his violation, and the District Court revoked his supervised release.

During sentencing, the parties, and the District Court, spent a significant time discussing Mr. Adams's lengthly history of drug abuse.  The Government apparently caught the District Court's eye, however, by arguing that a shorter sentence would not prove effective by claiming that there was evidence that the brains of addicted persons take at least eighteen months to "reset," i.e. to break them of their addiction.  Not coincidentally, the District Court sentenced Mr. Adams to eighteen months imprisonment with no supervised release to follow.

On appeal, Mr. Adams argued that his sentence was both procedurally and substantively unreasonable.  Specifically, he argued that the sentence was procedurally unreasonable by relying upon the Government's "reset" argument, by sentencing him to a term of imprisonment that would help him gain access to the RDAP program, and by concluding that the United States Sentencing Commission's recent recidivism study was limited to violent offenders.

The Government audaciously responded that a defendant "does not have a due-process right 'to be sentenced based on accurate information...beyond the facts of the defendant's own actions and criminal record.'"  The Court summarily rejected this argument.  Of particular importance to the Court was the District Court's reliance upon the Government's "reset" argument.  Noting that the Government did not cite a specific study or provide support for its assertion either during the sentencing hearing or in its appellate brief, the Court concluded that Mr. Adams's sentence was procedurally unreasonable because he District Court erred in relying upon an unsubstantiated assertion that had "the veneer of accuracy due to its supposed status as a product of scientific research."  Because the District Court based its sentence on the Government's erroneous "reset" argument, the Court also concluded that Mr. Adams's sentence was also substantively unreasonable since it based his sentence on rehabilitative grounds.  The Court vacated Mr. Adams's sentence and remanded the matter for resentencing.

Although this author pokes fun of the Government's response here, one can ascribe sincere concern by the District Court toward Mr. Adams and his struggle with addiction.  Here is to hoping that the District Court, and Mr. Adams, can fashion a sentence upon remand that will truly help him beat his addiction and avoid further trouble.

Sunday, October 01, 2017

Verdict Stands Despite Jury Foreperson's Racist Remarks

By a vote of 2 to 1, the Sixth Circuit refused this week, in United States v. Robinson, to grant a new trial based on evidence of racial bias infecting a jury.

The case
The three defendants were convicted at trial of running a pay-to-play scheme in a southern Ohio school district. All three defendants are black; the jury had only two black members.

One defense attorney felt the two black jurors looked uncomfortable during the verdict and jury polling. So after the trial, he hired a private investigator to interview the jurors (in violation of court rules and the court's instruction not to contact them). 

The two jurors said that they were initially unconvinced of the defendants’ guilt. But then this happened (as summarized in Judge Donald's dissent):
The white jury foreperson accused the two black members of the jury of deliberately trying to hang the jury because of their shared race with the Defendants, raising the suggestion that the two jurors were protecting Defendants because “maybe [they] felt [they] owed something to [their] black brothers.” The foreperson also stated, “I find it strange that the colored women are the only two that can’t see” the defendants’ guilt. These comments escalated the tension in the jury room to the point that the marshal’s intervention was required.
The defendants moved for a new trial before sentencing. The district court denied the motion based in large part on Fed. R. Evid. 606(b)’s admonition against using juror testimony to impeach a verdict.

On appeal, the defendants argued that Pena-Rodriguez v. Colorado, 137 S. Ct.855 (2017), decided during pendency of the appeals, allowed impeachment of the verdict based on the foreperson’s racist remarks.

The majority decision
Judge Rogers, writing for the majority, distinguished Pena-Rodriguez on two grounds:
  1. Unlike in Pena-Rodriguez, the defense attorney violated a local court rule and a specific instruction from the judge not to contact jurors.
  2. The majority concluded that the foreperson’s remarks didn’t meet the requirement that juror racism rise above “offhand comment[s] indicating racial bias or hostility." Rather, Pena-Rodriquez requires a clear statement “tend[ing] to show that racial animus was a significant motivating factor in the juror’s vote to convict.” As the majority read this requirement, there can be no impeachment of the jury in this case because the foreperson “never suggested that she voted to convict [the defendants] because they were African-American."
The defendants also challenged the district court’s three Allen charges. Particularly, they objected to the court’s remark, “I would encourage you to resolve the conspiracy issue because ultimately all these issues have to be resolved” (emphasis added). They argued this last part was overly coercive in that it failed to inform the jury of its right not to reach a unanimous verdict. But the majority decided that the court’s instruction was reasonable given the jurors’ questions, and that any problem was cured by the court’s later issuance of two full pattern Allen charges.

The dissent
Judge Donald issued a strong dissent taking aim at the majority’s efforts to distinguish Pena-Rodriguez and tracing the history of racial bias in jury issues, ending with this conclusion:
The history of racial bias in the courtroom is not only a stain on our shared past; its corrosive effects persist to this day. The enduring shadow of bias also dims public confidence in the fairness of the courts. The majority’s decision represents a step backwards from the strides we have made towards eradicating this disgraceful legacy from our criminal justice system. For the reasons set forth above, I differ with the majority with regard to the issues of racial animus within the jury and to the Allen charges, which, operating in a mutually reinforcing manner, exerted pressure on the two black jurors who were not prepared to vote for a guilty verdict. In combination with the racial animus contained in the jury foreperson’s remarks, these circumstances raise serious doubts about the fairness and impartiality of the jury’s decision.

Thursday, September 28, 2017

Whittling away Johnson: Assault with weapon or serious bodily harm are crimes of violence

The Sixth Circuit yesterday, in United States v. Verwiebe, held that two federal crimesassault with a dangerous weapon and assault resulting in serious bodily injuryconstitute “crimes of violence” under the “elements clause” in the career-offender guideline.

According to the court, even though simple common law “assault” by itself may not be a crime of violence, once you add “use of a dangerous weapon” or a resulting “serious bodily injury,” it does. In the court’s view, it’s impossible to commit an assault with a weapon or that results in serious bodily injury without using or threatening violent physical force.

The court scoffed at the idea that these forms of assault could be committed without violent force because an offender could use poison:

The “use of physical force” is not the drop of liquid in the victim’s drink; it is employing poison to cause serious bodily harm. See United States v. Castleman, 134 S. Ct. 1405, 1415 (2014). Under Verwiebe’s theory, tripping somebody into oncoming traffic, or for that matter perpetrating a sarin gas attack, would not be a crime of violence. Creative minds, once unhinged from common sense, might even suggest that pulling the trigger of a gun is not a sufficiently direct use of physical force. Sentencing law does not turn on such fine, reality-defying distinctions.

The court also rejected its prior precedent holding offenses are not crimes of violence if “a mental state of recklessness suffices for conviction,” reasoning that this prior precedent was overruled by Voisine v. United States, 136 S. Ct. 2272, 2280 (2016).

Thursday, September 21, 2017

Court clarifies Mathis is not a new rule

The Court today denied a defendant's right to file a second or successive 28 U.S.C. section 2255 petition, confirming that the Supreme Court's decision in Mathis v. United States, 136 S. Ct.
2243 (2016) did not create a new rule of law, but rather, was compelled by over 25 years of prior precedent.  The Court further found that  United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016) did not support any successive filing, as it was not Supreme Court precedent made explicitly retroactive.

Today's ruling in In re Conzelmann can be found here.

Friday, September 15, 2017

Crazy or Cunning Like a Fox?

Sovereign citizens and tax protestors—public defenders of have represented them all.  Some sovereign citizens may not explicitly identify themselves as such, but they firmly believe a bevy of unorthodox theories about the U.S. government.  It can be difficult to judge whether these sovereign-citizen clients suffer from a mental disease or whether they have simply spent too much time on the Internet.  Airiz Coleman was one such person. 

The government accused Mr. Coleman of being a felon in possession of a firearm after a bizarre interaction when a recovery agent tried to repossess his car.  In court, Mr. Coleman’s behavior was also strange; he claimed that the court lacked jurisdiction over him and that he was charged with a “commercial crime” for which he did not need to answer.

This behavior continued as Mr. Coleman’s relationship with two different lawyers broke down.  Right before his trial, he filed a host of documents with nontraditional punctuation, capitalization, and numerous terms of legalese sprinkled throughout an otherwise incomprehensible document.  The judge denied each of these pretrial motions.

After a jury found Mr. Coleman guilty, Mr. Coleman filed a motion for a third attorney, dissatisfied with the result of the trial.  He claimed his third attorney demanded a fee for a not-guilty verdict, was unprepared for trial, and even that he rendered ineffective assistance of counsel under Strickland standard.  The court denied that motion, as well.

At the sentencing hearing, Mr. Coleman sounded a bit more lucid.  He described his troubled upbringing and his love for his family.  He begged for mercy.  But he told the judge that, if released from prison, he had a “guaranteed job on anger management in LA with Charlie Sheen”—a strange remark.  Unmoved, the district judge sentenced Mr. Coleman to three years’ incarceration.

On appeal, Mr. Coleman’s fourth attorney asserted that the district court erred by failing to order a competency evaluation sua sponte.  The Sixth Circuit therefore had to decide whether there was reasonable cause to believe Mr. Coleman was suffering from a mental disease or defect that rendered him mentally incompetent.  The legal standard for incompetency is frustratingly high.  A person is incompetent to stand trial if (1) he or she does not have a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, or (2) lacks a rational and factual understanding of the proceedings.  

The Sixth Circuit noted that the district court had no evidence that Mr. Coleman had been diagnosed with a mental illness in the past.  It also examined Mr. Coleman’s strange behavior in court.  But the court reasoned that his repeated reference to civil legal matters, nonsensical use of legal jargon, and unorthodox filings demonstrated that he actually knew exactly what was going on:  he knew that he was in court, that courts cannot act without jurisdiction, and even that attorneys must be constitutionally effective (he referenced Strickland, after all).  No, the Sixth Circuit said, he did not have a mental disease; he was just a sovereign citizen—or at least sovereign-citizen-ish, which is a belief system, not a mental defect.  The court also viewed Mr. Coleman’s presentation at his sentencing hearing as evidence that he could keep it together and act relatively normal when he wanted or needed to do so.  Untroubled by Mr. Coleman’s bizarre claim that he had guaranteed work with Charlie Sheen, the court speculated that Mr. Coleman might be imitating the actor’s on- and off-screen behavior to gain an advantage.

In addition, the court was not convinced that Mr. Coleman’s potential mental illness prevented him from communicating effectively with counsel.  Instead, the court believed the record demonstrated that Mr. Coleman was just a difficult client who was refusing to communicate with counsel.

In short, the Sixth Circuit believed Mr. Coleman hammed up and toned down his peculiar behavior to gain a tactical advantage.  By the court’s estimation, Mr. Coleman was just cunning.

Thursday, September 14, 2017

The Post-Hurst Hydra Loses a Head

In Hurst v. Florida, the Supreme Court held that Florida’s death-penalty sentencing scheme unconstitutionally authorized judges to find facts necessary to impose a death sentence.  Under Florida’s unconstitutional system, juries recommended a life or death sentence, and then judges held a separate hearing to find mitigating and aggravating factors.  Judges then imposed a sentence after consideration of those factual findings and the jury’s recommendation.  In the immediate aftermath of Hurst, Professor Douglas Berman predicted there “will likely be multi-headed, snake-like litigation that will grow and grow again” in Florida, federal, and other state courts.  He coined the term “post-Hurst hydra” to describe that multi-headed litigation beast.  The Sixth Circuit was one of those courts that had to contend with the post-Hurst hydra.  In re Coley decapitates one of the post-Hurst hydra’s heads.

In Ohio, in 1998, Douglas Coley was condemned to die after a jury trial. He challenged the conviction and death sentence in state and federal courts until exhausting his available remedies in 2013. Approximately three years later, in January 2016, the Supreme Court decided Hurst.  In Mr. Coley’s case, his Ohio jury gave a general verdict.  This sentencing scheme potentially violates the Sixth Amendment because a jury never found the aggravating and mitigating facts beyond a reasonable doubt.

Even though he had exhausted his federal remedies, Mr. Coley relied on Hurst to file a petition for permission to file a second or successive (“SOS” for short) petition for a writ of habeas corpus.  Unfortunately, that meant he had to satisfy the narrow dictates of 28 U.S.C. § 2244(B)(2).  To do so, he needs to show either (1) that his “claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” or (2) that “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence,” and if those facts are proven by clear and convincing evidence, then “no reasonable factfinder would have found the applicant guilty.”  Id. (b)(2)(A)–(B).  In Mr. Coley’s case, he argued that, had he been able to uncover and prove the fact that Ohio’s death sentencing transferred power from jury to judge, then no reasonable factfinder would have sentenced him to death.

But the Sixth Circuit held that Mr. Coley could not satisfy either standard because the Supreme Court has not explicitly made Hurst retroactive.  It also held that Mr. Coley cannot satisfy the second prong because Hurst’s holding cannot be a newly discovered fact for purposes of § 2244(b)(2)(B). To treat a new Supreme Court decision as a new factual predicate, the court reasoned, would undermine the whole point of § 2244(b)(2)(A).

Judge Merritt disagreed on this last point.  He believed that Hurst overruled decades of prior precedent, and therefore no attorney or defendant would have investigated the facts underlying the claim.  He would send out an SOS to Mr. Coley based on this preliminary showing of a new factual predicate.

SOS applicants from Ohio hoping to rely on Hurst are out of luck.  And Mr. Coley is still condemned to die.