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. 

Monday, September 11, 2017

Sixth Circuit Vacates Convictions Because of District Court's Failure to Hold Remmer Hearing to Determine Scope and Impact of Juror Misconduct

After jury deliberations had commenced a juror contacted a state prosecutor, who was not involved in the case, and expressed concern about the way the deliberations were going. The state prosecutor informed the juror that they could not discuss the matter and later contacted the district court to report the juror's call. The juror never raised any issue with the court or any of its personnel. The jury returned guilty verdicts not long after the juror's call to the state prosecutor, and a report from a court officer that the jury was "very clearly divided into two groups this morning and they're angry with each other." The district court denied the defendants' post-trial motions including motions to interview jurors. The case is United States v. Lanier, Nos. 16-6655/6657.

The Supreme Court's decision in Remmer v. United States, 347 U.S. 227 (1954), Established for District Court's a duty  to "investigate a colorable claim of external influence on the jury to determine whether any external influence occurred and, if so, whether it was prejudicial." Nevertheless, a district court's decision as to whether or not to hold a Remmer hearing is a matter of discretion.

The Sixth Circuit ruled that the district court abused its discretion in declining to hold a Remmer hearing. First, the juror initiated the contact with the state prosecutor and did so, it appears, to obtain input – an external influence – as to the jury deliberations. Second, the district court should have determined the scope and impact of the juror's misconduct: "because no one has ever questioned any member of the jury, we do not know the extent of the juror's misconduct in contacting third parties and discussing the case with outsiders or what impact the juror's misconduct involving extraneous communications had on the rest of the jury." Third, the juror did not inform the district court of the Of either the issue that prompted the call to the state prosecutor or the fact that the call had occurred. Finally, the jury returned its verdict shortly after a report that it was divided into two opposing and angry groups, another fact that suggest the possibility of external influence.

The Sixth Circuit vacated the defendants' convictions and remanded the case to the district court to hold a Remmer hearing and make findings as to the scope and impact of the juror's misconduct.

Robert L. Abell

Friday, September 01, 2017

          Sixth Circuit holds that a table can be a “dangerous weapon.” 

In United States v. Duke, the Sixth Circuit considered the defendant’s challenge to several sentencing enhancements.

When Ronnie Duke was arraigned on a charge of failing to surrender for a sentence, his attorney proposed that he be held at one of two sites while he was awaiting trial. The Assistant U.S. Attorney (AUSA) objected and sought detention in another facility. With that, Mr. Duke cursed the AUSA, ran toward her, grabbed her by the back of the head, hit her several times with his fist, and repeatedly smashed her head into a table. Her legs were bruised when they were pushed into the table during the assault and she had an abrasion on her temple. Mr. Duke was subsequently charged with assaulting, resisting, or impeding certain government officers or employees in violation of 18 U.S.C. §§ 111(a)(1) and (b).

 The district court applied a sentence enhancement based on its finding that the table was a “dangerous weapon” under U.S.S.G. § 2A2.2(b)(2). The court applied several other enhancements as well. Mr. Duke challenged all of the enhancements on appeal but the Sixth Circuit rejected his arguments.

 The Sixth Circuit uses a “functional approach” to determine what constitutes a “dangerous weapon” under § 1B1.1 cmt. n.1(D). That “functional approach” requires “looking at the circumstances in which the [instrument] was used.” The Sixth Circuit previously noted that “in the proper circumstances, almost anything can count as a dangerous weapon[.]” Here, the district court found that the table as used by Mr. Duke was capable of inflicting death or serious bodily harm. In addition, the AUSA’s bruises and abrasion showed that the table was used “in a dangerous manner.” The Sixth Circuit held that those findings supported the conclusion that the table was a “dangerous weapon” pursuant to § 2A2.2. The Sixth Circuit also held that a table met the definitions of “object” and “instrument” in § 1B1.1 cmt. n.1(D).

 The Sixth Circuit also addressed several double counting arguments made by Mr. Duke. Guideline Amendment 614 provides that the base offense level for aggravated assault (§ 2B2.2) and the weapon use enhancement in § 2B2.2(b)(2) shall apply to aggravated assaults that involve a dangerous weapon with intent to cause bodily harm. Relying on Amendment 614, the Sixth Circuit held that it is permissible double counting to consider the use of a dangerous weapon in calculating the base offense level under § 2A2.2(a) and a § 2A2.2(b)(2) enhancement.

Next, the Court rejected Mr. Duke’s argument that impermissible double counting occurred by using the victim’s bodily injury for enhancements under § 2A2.2(b)(3)(A) and § 2A2.2(b)(7). The Sixth Circuit acknowledged that both enhancements were based on the infliction of bodily harm but two enhancements can stem from the same conduct if they “penalize distinct aspects of [a defendant’s] conduct and distinct harms.” In the Court’s view, they did so here because § 2A2.2(b)(3)(A) enhances the defendant’s offense level if “the victim sustained bodily injury.” Section 2A2.2(b)(7), on the other hand, ensures “punishment at or near the maximum penalty for the most egregious conduct covered by 18 U.S.C. § 111[.]” See 2A2.2 cmt. There was no impermissible double counting because the assault of the AUSA “is distinct from general infliction of bodily harm[.]”

 Lastly, Mr. Duke’s base offense level was calculated under § 2A2.2 because he was convicted under 18 U.S.C. § 111 which prohibits assaulting government officers or employees. He also received a sentence enhancement under § 3A1.2(b) because the victim was a government officer or employee. There was no impermissible double counting because the Sentencing Commission intended to attach multiple penalties to the same conduct. The Sixth Circuit noted that under § 2A2.2 cmt. n.4, if § 2A2.2(b)(7) applies then § 3A1.2 also applies. The Court reasoned that if those guidelines were intended to apply to the same conduct, then it followed that the Commission intended “§§ 3A1.2 and 2A2.2 as a whole to apply with respect to the same conduct as well.”






United States v. Duke,

Friday, August 25, 2017

Fourth Amendment vs. "Community-Caretaker" Exception

If you have ever doubted that courts tend to trust the motives of police officers more than the average person might, look no further than today's decision in United States v. Lewis.

Picture this: a woman is walking through Wal-Mart looking sufficiently intoxicated---with her "balance off," eyes closing, and "nodding off"---that someone called the police. Officers notice that her speech is slurred, her eyes were "red and glassy," and, somehow, that her mouth was "real dry." Absent the typical police assessment that she "smelled of alcohol," the woman was clearly under the influence of drugs, a fact she confirmed by stating that she was on pain pills. Officers asked if she was alone, and she said that her boyfriend was in the parking lot. The officers helpfully offered to escort her to the parking lot to "check to make sure" that her boyfriend was able to drive her home. Finding that the truck had tinted windows but still somehow able to see that the boyfriend was asleep, officers opened the door of the truck without a warrant. To no one's surprise, they found more pills.

Based on this fact scenario, the panel declared that the police were "not investigating any wrongdoing" when they opened the door. Rather, they were acting in their "community-caretaker" role, thus invoking what may be the single most obscure exception to the Fourth Amendment's warrant requirement. The exception only applies where the police action is "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute," a standard that would seem to exclude a situation where police are called to address a woman who is (admittedly) high on pain pills at a Wal-Mart somewhere in the scenic town of Opioid-Epidemic, Kentucky. The Lewis panel concluded otherwise, declaring that the community-caretaker exception applied, and "[f]ortunately, the Fourth Amendment does not impose technical prerequisites upon such a natural act of community service."

If there is any bright side to this further encroachment on the Fourth Amendment, it is that this published decision would seem to make it impossible for officers to claim that an individual's public intoxication on potentially illegal narcotics gave them reasonable suspicion of any criminal wrongdoing. After all, the sight of such a person is "totally divorced" from any investigatory motive.

Tuesday, August 22, 2017

Non-aggravated burglary is more "violent" than aggravated burglary

After the rare Johnson/Mathis victory in the Sixth Circuit's Stitt decision---which held that Tennessee aggravated burglary was not a violent felony under the Armed Career Criminal Act---a strange legal dance ensued. Defense attorneys tried to make the Stitt logic apply to "regular" Tennessee burglary, despite the fact that Stitt relied on the distinctive definition of "habitation" in Tennessee's aggravated burglary statute, which the non-aggravated burglary statute did not have (and prior published decisions had held that Tennessee burglary was a violent felony). Meanwhile, prosecutors and judges had to find an eloquent way to justify the cognitive dissonance of non-aggravated burglary being considered more "violent" than aggravated burglary.

Today's published Ferguson decision settles the matter (barring some later reversal), holding that Stitt has no application to Tennessee non-aggravated burglary. The short three-page opinion leans on prior precedent without much additional explanation, and one might detect a measure of frustration in the panel's observation that "[s]itting en banc, our court recently overruled a decade-old precedent" in Stitt. (Two of the judges on the Ferguson panel joined with the Stitt majority but wrote separate concurrences, and one judge dissented.) Tennessee burglary still qualifies as generic burglary for the ACCA's definition of "violent felony."

Ferguson closes an important door to relief for Johnson/Mathis petitioners, and it creates a confusing conversation for anyone with clients who had prior Tennessee burglaries and hoped for a sentencing reduction.

Tuesday, July 18, 2017

A Possible Different Twist on Padilla

After the United States Supreme Court's decision in Padilla v. United States, attorneys and courts are now well-versed about the necessity of informing defendants about the possible effects a guilty plea may have on their immigration status.  A recent published decision by the Court in United States v. Ataya, discusses a related issue that many of us may have not considered and is worth a brief discussion.

In this case, Mr. Ataya entered into a guilty plea to conspiring to commit health care fraud and wire fraud.  Although his plea agreement waived his right to appeal his conviction and sentence, Mr. Ataya filed a notice of appeal from the judgment.  The United States subsequently moved to the dismiss the appeal based on the waiver language.

In a published decision, the Court noted several issues with the district court's plea colloquy.  In particular, it found that the district court did not inform Mr. Ataya that the plea agreement required him to pay restitution and a special assessment.  Most importantly, however, the Court noted that the neither the plea agreement nor the district court told Mr. Ataya -- a foreign national who subsequently became a naturalized U.S. citizen -- that he could face "denaturalization" due to his conviction.  Although the Court held Mr. Ataya knowingly and voluntarily waived his appellate rights, the Court hinted that the failure to explain the denaturalization risk might invalidate the plea agreement as a whole and referred the motion to its Merits Panel to examine the issue.

While the Court may ultimately dismiss Mr. Ataya's appeal, this case serves as a reminder that counsel should take care in advising immigrant clients who enter into plea agreements -- even where such clients have become naturalized United States citizens.  While attorneys might overlook this issue where their client has taken the steps to become a naturalized citizen, this case emphasizes that one cannot be too careful in such cases.

Wednesday, July 05, 2017

Minor victim’s testimony sufficient to sustain sexual-assault conviction

Today, in a short published opinion, United States v. J.A.S., the Sixth Circuit rejected a 17-year-old defendant’s challenge to his conviction for sexually assaulting an 8 year old through vaginal penetration.

There was no medical evidence to show an assault, so the government’s case rested on the testimony of the victim.

The defendant made two arguments: (1) that the court shouldn't have admitted video of a forensic interview of the victim, and (2) that the victim's testimony was insufficient to convict him.

The court quickly dispatched the evidentiary argument. The video, the court concluded, fell under Rule 801(d)(1)(B)(ii), which allows for admission of prior consistent statements if offered to rehabilitate a witness after cross-examine.

The court also upheld the sufficiency of the evidence, distinguishing decisions from four other circuits that rejected convictions based solely on victim testimony. The court explained that in each of these cases the victims’ testimonies were vague about whether actual penetration occurred. In contrast, the victim in the case at hand testified at a bench trial that the defendant “put his pee in [her] pee,” that she “felt it” in her, and that it hurt.

Because he was charged for an act of juvenile delinquency under 18 U.S.C. § 5032, the defendant faced a maximum of 5 years’ imprisonment, and he received a 3-year sentence.

Thursday, June 29, 2017

Tennessee aggravated burglary - NOT a violent felony

As teased in the previous post (thanks Laura!), the Court on Monday issued an en banc opinion holding that, in our post-Johnson and Mathis word, Tennessee's aggravated burglary statute (Tenn. Code Ann. § 39-14-403) is not a violent felony under the ACCA.

In United States v. Stitt,  9 judges of the en banc court joined together in finding that "[b]y including 'mobile homes, trailers, and tents,' as well as any 'self-propelled vehicle,' Tennessee’s aggravated-burglary statute includes exactly the kinds of vehicles and movable enclosures that the Court excludes from generic burglary"  The Court found unpersuasive the argument that, because Tennessee law required such structures to be “designed or adapted for the overnight accommodation of persons”, that the statute met the generic definition of burglary.  Rather, it is nature of the place itself, rather than its intended use, that controls whether a location meets the generic burglary standard.

Congrats to AFPD Timothy Ivey!!!

Tuesday, June 27, 2017


Tennessee aggravated burglary is NOT a crime of violence. Details to be posted by whichever colleague whose thunder I just stole. I'm just really excited.

Opinion here

Friday, June 16, 2017

Sixth Circuit Recognizes Child Abuse Exception to Marital Communications Privilege

The marital communications privilege allows a defendant-spouse to preclude testimony by his or her spouse regarding confidential marital communications. The privilege has exceptions, of course, as do all privileges, and the Sixth Circuit recognized a child abuse exception in United States v. Underwood.

Underwood was charged with sex crimes perpetrated against his step-granddaughter, who was between eleven and twelve years old at the time. On appeal he challenged admission of testimony over his assertion of the marital communications privilege from his wife (1) that she became concerned about defendant’s favoritism toward their step-granddaughter; (2) about an incident when she found that defendant had changed the bed linens while he and the child had been at home alone; and, (3) regarding text messages and voicemails she received from defendant where he did not deny sexually assaulting the child and “apologized for not being a perfect man.”  

The Court principally relied on decisions from the First and Tenth Circuits, United States v. Breton, 740 F.3d 1 (1st Cir. 2014), and United States v. Bahe, 128 F.3d 1440 (10th Cir. 1997), to recognize and apply a child-abuse exception to the marital communications privilege. The child-abuse exception rests on four considerations: (1) a crime against a spouse or a spouse’s child profanes the trust and bond of marital partners and disrupts family harmony; (2) parental testimony is particularly necessary in child-abuse cases, because child abuse occurs most often in the home at the hands of a parent or parent-substitute; (3) the marital privilege, like all privileges, must be interpreted narrowly; and, (4) overwhelming state legislative and judicial authority that the marital communications privilege does not apply where the crime is against a spouse’s child.

Applying these considerations in a “fact-intensive inquiry” the Court explained as follows: (1) defendant’s sexual abuse of his wife’s granddaughter profaned the marital relationship and disrupted family harmony; (2) defendant sexually abused his spouse’s granddaughter while serving as a parental-substitute; (3) that the child was a granddaughter as opposed to a daughter made no significant policy difference; and, (4) that the crime occurred in defendant’s “sleeper truck,” as opposed to their home made no difference since the truck was the functional equivalent.

The Court also upheld admission of testimony from defendant’s daughter concerning his sexual assault on her more than 20 years prior to the trial pursuant to FRE 414.

Robert L.Abell
Zach Turpin 

Tuesday, June 06, 2017

Certiorari granted in Sixth Circuit case involving seizure of cell phone location records.

As noted in a previous post, the Sixth Circuit recently held in United States v. Riley that tracking a fugitive’s real-time GPS location through his cell phone was not a Fourth Amendment search. The Supreme Court has now taken up a case that involves the government’s seizure of cell phone location records. On the same day that the Riley opinion was issued, the Supreme Court granted certiorari in Carpenter v. United States, No. 16-402, which presents the question “whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.”

 In Carpenter, the defendants were charged with multiple robberies in violation of the Hobbs Act (18 U.S.C. § 1951). They sought to suppress evidence that included “business records from [their] wireless carriers showing that each man used his cellphone within a half-mile to two miles of several robberies during the times the robberies occurred.” United States v. Carpenter, 819 F.3d 880, 884 (6th Cir. 2016). The defendants argued that the government’s acquisition of those records constituted a warrantless search in violation of the Fourth Amendment. The Sixth Circuit upheld the denial of the suppression motion.  

 The Sixth Circuit recognized a distinction between “a communication’s content and the information necessary to send it.” In the court’s view, cell-site data is information that facilitates personal communications, “rather than part of the content of those communications themselves.” Carpenter, 819 F.3d at 887. The bottom line was that the government’s acquisition of records containing cell-site data was not a search under the Fourth Amendment and the defendants did not have a reasonable expectation of privacy in those records.
The Supreme Court may rule on the issue by the end of the year.


Government’s tracking of real-time GPS coordinates from fugitive’s cell phone is not a Fourth Amendment search.

In United States v. Skinner, 690 F.3d  772, 774, 776-77 (6th Cir. 2012), the court held that the government’s use of real-time cell phone GPS data to track a suspected drug trafficker as he traveled for several days in a motorhome driven on public roads was not a search. An important factor in Skinner’s Fourth Amendment analysis was that the defendant’s movements could have been observed by members of the public. Id. at 779. Relying on Skinner, the Sixth Circuit held in United States v. Riley, that tracking the real-time GPS location data from a fugitive’s cell phone for about seven hours preceding his arrest did not constitute a Fourth Amendment search.
          A state court issued an arrest warrant for Mr. Riley. He bought a cell phone and gave the number to his girlfriend who gave it to law enforcement officers. The officers obtained a court order for call metadata which included real-time tracking of the cell phone. Following the issuance of the court order, officers received real-time GPS data which showed that Mr. Riley’s cell phone was located at a motel in Memphis. The officers went to the motel and learned Mr. Riley’s room number from an employee. Mr. Riley was arrested and subsequently filed a motion to suppress a gun that was found in his room. Mr. Riley contended that the gun was the fruit of an unconstitutional search because the government’s method of tracking him violated his reasonable expectation of privacy and therefore required a search warrant. The Sixth Circuit upheld the denial of the suppression motion.
          The court recognized that a warrantless search inside a home (or a hotel room) is presumptively unreasonable. Mr. Riley, however, was not subject to a Fourth Amendment search because the use of GPS location data to determine the location of a person or a cell phone “does not cross the scared threshold of the home,” as long as the tracking “does not reveal movements within the home (or hotel room).” Riley, at p. 8 (court’s emphasis). The tracking here only showed that Mr. Riley “traveled to [the motel], “not which room (if any) the phone was in at the time of the tracking.” Id. (court’s emphasis). A significant factor in the court’s reasonable-expectation-of-privacy analysis was that the government learned no more about Mr. Riley’s whereabouts from the tracking than what “he exposed to public view by traveling to the motel lobby ‘along public thoroughfares.’” Riley, at p. 9 citing Skinner, 690 F.3d at 774 (court’s emphasis). The court emphasized that “one cannot expect privacy in one’s public movements.” Riley, at p. 9 (court’s emphasis).
          The per curiam opinion concludes with some good advice: if a person “truly wished to avoid detection, he could have chosen not to carry a cell phone at all, or to turn it off.” Riley at p. 9 (court’s emphasis).
          In a concurring opinion, Judge Boggs discussed several other factors that in his view supported the court’s holding. The most significant factor was Mr. Riley’s status as a fugitive as opposed to being a suspect. In Judge Boggs’ view, Payton v. New York, 445 U.S. 573 (1980), “as corroborated by significant historical evidence of the original meaning of the Fourth Amendment, provides strong support for the proposition” that fugitives who are on the run from arrest warrants have a diminished expectation of privacy. Riley, at p. 12 (concurring opinion). He would hold that Mr. Riley’s Fourth Amendment argument fails because “he was a fugitive subject to a valid arrest warrant,” and the officers had reasonable suspicion that he was in possession of the cell phone they were tracking. Riley, at p. 10 (concurring opinion).   

Wednesday, May 17, 2017

Dr. Evil needs some legal "advise" ... or is it "advice?"

When criminal-law cases imitate art,
they do not always choose its highest form.

The Secret Service pays close attention when nefarious packages arrive at accounting firms from “Dr. Evil” - especially if “Dr. Evil” threatens the release of undisclosed tax returns of a presidential candidate unless $1 million in bitcoins is exchanged.

In August 2012, the Franklin, TN office of PricewaterhouseCoopers received a padded envelope containing a flash drive and letter demanding $1 million in bitcoins to stop the release of Mitt Romney’s undisclosed tax returns. The letter provided that the flash drive had these encrypted tax files and upon receipt of the bitcoins, an encryption key would be provided. The Williamson County Republican and Democratic party offices also received letters a few day later. After that, posts were placed on that described the stolen documents and referenced the mailed letters. Several of these posts were signed by “Dr. Evil” and had the movie character’s image superimposed on the lobby of PricewaterhouseCoopers’ Franklin TN office. “Dr. Evil” was also wearing a Secret Service badge.

No matter how careful a technologically savvy extortionist may be – there are always digital crumbs left behind - even when the extortionist portrays himself as “Dr. Evil” from Austin Powers: International Man of Mystery.

In Michael Mancil Brown’s case - some of those crumbs included photographs on the flash drives of Tripper and Valentine - two cats that lived next door to him. It is unfortunate that neither were called “Mr. Bigglesworth.” Other clues that assisted the Secret Service with pinpointing his identity included text strings left behind on the flash drives that provided his wife’s name and a user name frequently used by Brown; and his consistent inability to properly use ‘advice’ and ‘advise.’

The Secret Service obtained a trap-and-trace order to watch Brown’s online activity and subsequently obtained a search warrant for his home. More inculpatory evidence was obtained against Brown leading to his indictment. He was later convicted on six counts of wire fraud and six counts of extortion. He received a 48-month sentence and was ordered to pay restitution to PricewaterhouseCoopers in the amount $201,836 for the cost of its investigation. He appealed his convictions arguing that the Secret Service’s search warrant lacked probable cause and that he was prejudiced by the lower court’s decision to allow questions from the jury. 

The Sixth Circuit affirmed the convictions but vacated his sentence due to an improper obstruction of justice enhancement. Brown had given a list of names of people having access to his computer. This information was used at sentencing by the government to apply the obstruction of justice enhancement. The Court concluded that the statement actually helped the government, undermined Brown’s credibility, and bolstered the government’s case. Thus, the information provided by Brown did not significantly obstruct or impede the government’s investigation and did not justify the obstruction of justice enhancement pursuant to U.S.S.G. § 3C1.1. 

This Sixth Circuit opinion is truly an informative and groovy read, especially if you are a fan of the Austin Powers movies, or if you truly need a detailed legal analysis concerning the issues raised by Brown.

Monday, May 08, 2017

Ladies and Gentleman, we have a double header!

When the Sixth Circuit granted en banc rehearing to In Re: Ohio Execution Protocol, 17-3076, it scheduled argument in the very same order: June 14, 2017.

Now, there's our double-header, on October 11, 2017: Turner v. United States, 15-6060, the right to counsel pre-indictment case, in the morning, and United States v. Gibson, 15-6122, the "how much drugs for the puny co-defendant" case in the afternoon.

All three of these cases were granted en banc rehearing in 2017.

Sitting in a corner somewhere, singing "The Cheese Stands Alone," is United States v. Stitt, No. 14-6158, concerning whether Tennessee aggravated burglary is a violent felony. It was granted en banc rehearing on April 27, 2016. Mathis v. United States, 136 S. Ct. 2243 (2016), effectively reset the briefing schedule. That schedule ended in early September 2016. There has been a trickle of 28(j) letters since, with the Fourth Circuit's opinion in United States v. White, 836 F.3d 437 (4th Cir. 2016) (holding West Virginia's burglary statute is overbroad) in September 2016 and the Eighth Circuit's opinion in United States v. Simms, No. 16-1233, 2017 WL 1500308 (8th Cir. 2017) (holding same of Arkansas burglary). The government filed a hopeful, "hey this is when I'm not available in June and July," notice in January. There's still a chance of argument sometime in the fall, but it is probably more reasonable to contemplate a winter or spring sitting.

Sunday, April 30, 2017

Buyer's Remorse: Sixth Circuit Broadly Construes Appellate Waiver in Plea Agreement

When I first began representing defendants in federal criminal cases, the United States almost always agreed to permit the defendant to retain his or her right to appeal their sentence in the plea agreement.  Over the last several years, the United States has been less willing to remove all language regarding sentencing appeals from its plea agreements.  Instead, in many cases, it seeks to include language permitting the defendant to appeal a sentence only if it is outside of the maximum sentence authorized under the Sentencing Guidelines.  The Court's recent decision in United States v. Griffin is one of those cases.

In this case, Mr. Griffin pleaded guilty to conspiring to defraud the government by submitting false income tax refund claims and obtaining the fraudulent proceeds.  The plea agreement stated that Mr. Griffin waived his right to appeal his sentence, except "(a) any punishment in excess of the statutory maximum; or (b) any sentence to the extent it exceeds the maximum of the sentencing imprisonment range determined under the advisory Sentencing Guidelines in accordance with the sentencing stipulations and computations in this agreement, using the Criminal History Category found applicable by the Court."  After the District Court accepted his plea agreement, the United States Probation office prepared a PSR noting that, with an adjustment for acceptance of responsibility, Mr. Griffin's applicable Guidelines sentencing range was zero to six months.  

At sentencing, the District Court denied an adjustment for acceptance of responsibility and instead increased Mr. Griffin's base offense level by two points for obstruction of justice.  This changed his applicable Guidelines sentencing range to ten to sixteen months.  The District Court subsequently sentenced Mr. Griffin to twelve months imprisonment.  Finding that the District Court did not make sufficient factual findings to support its obstruction of justice enhancement, the Court remanded Mr. Griffin's case for resentencing.

Upon remand, the District Court again denied Mr. Griffin a reduction for acceptance of responsibility and again imposed the obstruction of justice enhancement.  This time, however, the Court imposed a ten-month sentence -- the minimum recommended under the Guidelines.  Mr. Griffin again appealed his sentence.

On Mr. Griffin's second appeal, the United States argued that the waiver language in Mr. Griffin's plea agreement barred his appeal.  Mr. Griffin, however, argued that the waiver did not apply because he received a sentence greater than the one contemplated in his plea agreement (zero to six months). The Court, however, disagreed, finding that the plea agreement did not contain stipulations limiting the Court to the zero to six month range.  For this reason, the Court found that the District Court imposed a sentence "under the advisory Sentencing Guidelines in accordance with the sentencing stipulations and computations" in the plea agreement.  Accordingly, it dismissed Mr. Griffin's second appeal.

Although one could certainly take issue with the Court's broad construction of the waiver language contained in Mr. Griffin's plea agreement (it does not appear the agreement hinged on the District Court's determination of the Guidelines range), it is a reminder that the devil is in the details regarding appellate waivers.  As the United States continues to clamp down on sentencing appeals, it is likely we will see similar cases in the future. 

Thursday, April 20, 2017

The en banc reviews keep coming!

Yesterday, the Sixth Circuit granted en banc review in United States v. Gibson, 15-6122. This case involves 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.

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.

The Sixth has yet to schedule oral argument in Stitt, 14-6158, or Turner, 15-6060. Given all the summer vacation schedules in play, it is probably too much to hope for a triple-header sometime in July or August. Maybe after Labor Day? When it is still warm enough to grab an after-court ice cream or pastry at Graeter's before heading off to Arnold's for tasty adult beverages?

Saturday, April 15, 2017

Judges clash over venue for money laundering

Ronald Myers argued that he couldn’t be tried in the W.D. Mich. for money laundering because, although he stole motor homes in the W.D. Mich., he sold (and received laundered proceeds for) them solely in other districts.

In US v. Myers, issued yesterday, Judges Rogers and Merritt affirmed his convictions, over Judge Kethledge’s dissent.

The money-laundering statute allows prosecution in “any district where a prosecution for the underlying specific unlawful activity could be brought, if the defendant participated in the transfer of the proceeds of the specified unlawful activity from that district to the district where the financial or monetary transactions in conducted.” 18 U.S.C.§ 1956(i)(1)(B). 

As the majority saw it, the statute provided venue in W.D. Mich. because Myers’s motor-home thefts occurred there. Further, the majority decided that the statute doesn’t violate constitutional limits on venue because those limits “permit prosecution in a district where the crime was committed in part.” Although Myers's money-laundering “was completed elsewhere,” the majority reasoned, “it was begun and therefore committed in part in the Western District of Michigan.”

Judge Kethledge disagreed on the constitutional point. He explained that, in interpreting constitutional venue, the Supreme Court has looked “to the place of the ‘conduct elements’ rather than to the place of any ‘circumstance element[s]’ of the offense.” And, he argued, the only “conduct element” to a money-laundering offense is the financial transaction itself. Because the financial transactions at issue took place outside the W.D. Mich., Judge Kethledge would have reversed Myers’s money-laundering convictions.

In his conclusion, Judge Kethledge warned that "the Constitution requires us to determine venue crime-by-crime, rather than in gross." Which raises the question: What other statutes could be subject to venue challenge?

Thursday, April 13, 2017

Exciting development in Turner right-to-counsel case

Last February, Judges Merritt, Batchelder, and Rogers announced in Turner v. United States, 15-6060 that they did not like Sixth Circuit precedent holding that the right to counsel (and thus the right to effective assistance of counsel) did not start until after a defendant is charged, but were bound to follow the precedent. We discussed the case here.

Apparently Judges Merritt, Batchelder, and Rogers are not the only judges on the court who have concerns. Today, the Sixth Circuit unanimously ruled to rehear the case en banc. This is a very exciting development. Anyone who has been involved with a defendant charged in state court and facing the possibility of federal charges knows just how important it is to have effective representation during the gestation period, so to speak, of a potential federal action. The NACDL filed an amicus brief in support of en banc rehearing.

No schedule has yet been set. Perhaps we could have a double header one day this summer, with Stitt in the morning and Turner in the afternoon?

Wednesday, April 05, 2017

Sixth Circuit addresses crimes of violence under U.S.S.G § 2K2.1(a)(2)

In United States v. Harris, the Sixth Circuit addressed the issue of whether the Michigan offense of Felonious Assault is a “crime of violence” under U.S.S.G § 2K2.1(a)(2).

          Oscar Harris was convicted of being a felon in possession of a firearm. The Guidelines provide that the base offense level for a firearm offense is increased if that offense is preceded by two felony convictions for a “crime of violence” which is defined in U.S.S.G § 4B1.2(a) and Application Note 1 thereto. See U.S.S.G § 2K2.1(a)(2) and § 2K2.1 cmt. n.1. The district court determined that Mr. Harris’s two prior convictions for felonious assault were crimes of violence under the Guidelines.

          On appeal, Mr. Harris contended that felonious assault was not a “crime of violence” because it could be committed by an offensive touching which would not amount to “violent force” under Johnson v. United States, 559 U.S. 133, 140 (2010). Thus, a felonious assault did not fit within the “elements clause” of § 4B1.2(a)(1) because it did not categorically involve the “use, attempted use, or threatened use of physical force against the person of another.”

          In response to Mr. Harris’s argument, the Sixth Circuit examined Michigan law and found that the felonious assault statute required a finding of “at least attempted or threatened offensive touching and use of a dangerous weapon.” The court determined that a battery is “a forceful or violent touching” and when coupled with the use of a dangerous weapon those two elements involve “the use, attempted use, or threatened use of physical force” under § 4B1.2(a)(1). Taken together, the two elements amounted to violent force and thus constituted a crime of violence under § 2K2.1(a)(2).  

Prior Convictions can count as crimes of violence under the Guidelines and as violent felonies under the Armed Career Criminal Act (ACCA)

United States v. Patterson involves the defendant’s direct appeal and the government’s cross-appeal of the district court’s sentencing decision.

          Mr. Patterson was convicted in Ohio state court of receiving stolen property and a traffic offense. The same incident also resulted in a federal prosecution and conviction for being a felon in possession of a firearm. The district court denied Mr. Patterson’s motion to dismiss the firearm charge on double jeopardy grounds. The district court, however, counted Mr. Patterson’s prior Ohio convictions for aggravated robbery as crimes of violence under the Guidelines but not as violent felonies under the Armed Career Criminal Act (ACCA). The Sixth Circuit affirmed the denial of the motion to dismiss but reversed the district court’s sentencing decision because the prior convictions met the requirements of the Guidelines and the ACCA.

          The Sixth Circuit first noted that dual prosecutions do not constitute double jeopardy because Ohio and the United States are separate sovereigns and may prosecute a person under their separate legal systems. Mr. Patterson, however, contended that the government acted in “bad faith” because it should have notified him of its intention to file federal charges when he was considering the State’s plea offer. The Sixth Circuit explained that the record did not show that there was any federal collaboration in the state prosecution. The federal government was not involved in the state plea negotiations and the State did not promise Mr. Patterson that he would not be subject to a federal prosecution. In the court’s view, there was no evidence of bad faith. The court, however, did not reject Mr. Patterson’s bad faith argument out of hand and the implication is that it could work in a different situation.

          The “heart” of the case, however, was whether Mr. Patterson’s prior aggravated robbery convictions were predicate offenses under the ACCA. The Sixth Circuit’s analysis focused on the ACCA’s “elements clause” which describes a “violent felony” as an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” See 18 U.S.C. § 924(e)(2)(B)(i). Using the categorical approach to determine whether the “elements clause” encompassed aggravated robbery, the Sixth Circuit looked at the statutory definition of the offense rather than the underlying facts. In response to one of Mr. Patterson’s arguments, the court said it did not matter that the Ohio statute did not include an element that matched the ACCA’s elements clause word for word as long as the offense at issue required the State to prove everything included in the elements clause.

          Mr. Patterson also argued that Ohio statute did not expressly require the use of force or that the use of a deadly weapon must be against another’s person. The Sixth Circuit, however, determined that the Ohio Supreme Court construed the statute as containing those elements. As to Mr. Patterson’s argument that the statute would permit a conviction of someone who robs a store while just happening to be carrying a weapon openly (as Ohio law allows), the court said that as long as there was no reason to think that the statute could be applied to someone who used “minimal actual force” or did not threaten serious physical force against others, then “there is every reason to treat it as a crime of violence.”

          The Sixth Circuit concluded from the language of the Ohio statute and state court decisions interpreting it that aggravated robbery fell within the scope of the elements clause and was therefore a violent felony. Thus, Mr. Patterson should have been sentenced as an armed career criminal.

          Mr. Patterson raised another issue regarding his sentence. He contended that the district court committed error by treating his conviction for aggravated robbery with a deadly weapon as a crime of violence when it calculated the base offense level under the Guidelines. The Sixth Circuit noted that it used authority interpreting the ACCA’s elements clause to interpret “the same phrase in the Guidelines.” That led the court to conclude that the offense qualified as a crime of violence under the Guidelines. The court also cited Beckles v. United States, 137 S.Ct. 886 (2017) as a separate reason to reject Mr. Patterson’s argument because aggravated robbery with a deadly weapon “would have qualified as a crime of violence under the residual clause, which was still part of the Guidelines” when he was sentenced.   




Sunday, April 02, 2017

Out of Luck

Child pornography cases are hard.  The people charged with such offenses often suffer serious mental health conditions or survived traumatic events.  Penalties for child pornography offenses are severe.  And the images of abuse are terrible—so terrible, in fact, that few defense attorneys would ever want to try a child pornography case to a jury.  The theory goes that, once the jurors see the awful images, their desire for recrimination will make consideration of nuanced defenses about the defendant’s intent nearly impossible.  United States v. Luck illustrates just how few arrows are in defense counsel’s quiver when defending child pornography cases.

Lindell Luck was charged with possession and distribution of child pornography.  Both charges require proof that the images possessed and distributed depict child pornography.  In an effort to focus on other elements (and perhaps to minimize jurors’ retributive impulses), Luck offered to stipulate that the images on his computers depicted child pornography.  But the government would not agree to this stipulation and insisted that jurors must view the images.  When the district court refused to force a stipulation, Luck turned to Old Chief v.United States, 519 U.S. 172 (1997), which held that district courts abuse their discretion under FRE 403 when a defendant charged with being a felon in possession of a firearm offers to stipulate to the prior felony conviction. 

Relying on one of Old Chief’s footnotes, which said the holding was limited to proof of a defendant’s felon status, the Sixth Circuit and the district court rejected Luck’s request.  Felon status, the court reasoned, is a unique element of 18 U.S.C. § 922(g) because the fact of conviction is all that matters, not the nature and circumstances leading to the conviction.  The prior conviction is essentially a side show that pre-dates the defendant’s new criminal conduct.  In contrast to a defendant’s felon status, the nature of the images is critical to the story of the offense.  The Sixth Circuit believed jurors might be confused if a court simply told them the files on Luck’s computer include images of child pornography.  The court further believed the jury could consider the content of the images to evaluate whether Luck knew the images he distributed were child-pornographic.  Worse yet, the court explained, a stipulation may unmoor the jury’s task “to sit in judgment” and understand the “human significance” of the defendant’s judgment.  The court did not mention the fact that, unlike a capital case, the jury plays no role in sentencing.  Apparently, the jury must be convinced that people, in fact, download and distribute child pornography.  And so, there is little defense counsel can do to ensure jurors can set aside their emotions after viewing these terrible images.

Luck includes other important discussions about whether a person is “in custody” when FBI agents come knocking at the door.  In short, the Sixth Circuit endorses the view that, unless officers are yelling or brandishing weapons, if a person is in his own home and officers say that the interrogee is free to leave, then no reasonable person could believe he is under arrest.  In reaching this conclusion, the court sanctioned the exclusion of testimony by the other people present during the questioning who would say that the FBI agents’ demeanor, tone, and general affect gave the distinct impression nobody was free to leave.  Also irrelevant to the in-custody inquiry was the fact that Luck was under the influence of various medications that cause him to feel like a character on The Walking Dead for a few hours after waking because nothing in the record suggested that the officers were aware Luck was under the influence.

The Sixth Circuit also approved of the exclusion of any testimony about why exactly Luck took those medications.  Luck was diagnosed with leukemia when he was eight years old.  He survived three years of chemotherapy and at least one botched chemotherapeutic session.  Since that time, he has struggled with joint pain, memory retention, and basic skills like reading and writing.  The jury was not permitted to hear any of that back story because the district court feared it would distract the jury from the task at hand:  deciding whether to believe Luck’s confession was true and freely given.  The Sixth Circuit agreed.

Finally, in an attempt to plant some reasonable doubt, defense counsel tried to call Luck’s father to the stand.  The plan was to ask dad a few introductory questions, but when the direct examination ventured into topics like who downloaded and distributed the child pornography, he would invoke his Fifth Amendment privilege against self-incrimination. This, the Sixth Circuit said, defense counsel cannot do when the witness and defendant have a familial relationship.  The fear is that the father may try to take the fall for his son.

In sum, Luck’s convictions and 78-month sentence were affirmed.  And defendants tried with child pornography offenses are likely out of luck if they want a jury trial.

Friday, March 31, 2017

Sheparding district courts

United States v. King brings us a fresh take on an old question:  How should courts determine whether someone is an armed career criminal?  Everyone is familiar with the beloved modified categorical approach, which requires sentencing courts to look at the elements of the statute of conviction and then compare them to the elements of the “generic” version of that crime.  When courts can’t figure out the elements the prosecution necessarily proved or the defendant admitted, then they may peek at the Shepard documents to learn the elements. 

But the Armed Career Criminal Act also requires that the government show that the defendant was convicted of violent felonies on different occasions.  How are courts to find out whether the prior offenses were committed on different occasions?

Errol King committed three kidnappings—all of which occurred “on or about February 18, 2002” in Cleveland, Ohio.  The indictment identified the victims, but did not list the place and times of the kidnappings.  This left the court guessing about whether the three robberies occurred on the same occasion.  To resolve this question, the district court used bills of particulars in which prosecutors claimed King had kidnapped and robbed seven victims at three different times and three different locations.  The Sixth Circuit had to decide:  (1) Are courts limited to looking at only Shepard document when trying to discern whether a defendant was convicted of three violent felonies on three separate locations?; and (2) Is a bill of particulars a Shepard document?

To answer the first question, the court reexamined the reasons underlying the Supreme Court’s decision to create the modified categorical approach in the first place.  To start, the statute’s text and legislative history do not provide any reason to believe Congress intended district courts to engage in extensive factfinding to understand the nature of the defendant’s prior conviction. Put simply, Congress never contemplated or desired re-litigation of the underlying convictions.  In addition, the statute itself discusses “previous convictions,” which indicated the focus was on the conviction itself, not the conduct leading to it.  Finally, the Sixth Amendment’s guarantee that juries, not judges, find facts beyond a reasonable doubt that increase the minimum penalty compels sentencing judges to limit their function as factfinders. 

There was one major difference between the two questions district courts must ask to apply the ACCA:  the statute provides that the convictions for violent felonies be “committed on occasions different from one another.”  18 U.S.C. § 924(e)(1).  This wording potentially suggests Congress was more concerned about the factual details underlying the conviction than the fact of conviction. But the Sixth-Amendment concerns were still present.  Judges would still have to scour the record to learn when and where the defendant committed the crimes.  For that reason, the Sixth Circuit held that district courts may consider only those sources sanctioned by Taylor and Shepard to determine whether the offenses were “committed on separate occasions different from one another.”  And so, the Sixth Circuit joined the Second, Fifth, Seventh, Tenth, Eleventh, and D.C. Circuits in holding that sentencing courts may not engage in a searching review of all records to determine whether a person must be sentenced to at least fifteen years in prison.  The Eighth Circuit alone holds the opposite view.

Having settled that score, the court turned to the next question:  Is a bill of particulars a Shepard document?  The Supreme Court did not list bills of particulars when it first identified the types of documents courts may consult, so the Sixth Circuit had to reason by analogy.  Ultimately, it concluded that juries need not find and defendants need not admit all facts listed in bills of particulars to be convicted of an offense.  For that reason, district courts may not consult bills of particulars to ascertain whether the defendant committed violent felonies on separate occasions.

The Sixth Circuit sent King’s case back to the district court for resentencing.  Before doing so, it clarified that the government could not rely on the fact that King pleaded guilty to kidnapping multiple victims.  Nothing in the indictments indicated that King did not kidnap all seven victims simultaneously.

King serves as an important reminder that district courts and prosecutors may not stray too far afield in the search of reasons to put a person in prison for fifteen years at minimum.

Made in .... ?

Courts and law professors are fond of reminding us that the power of the federal government is limited.  To those of us who practice criminal law in federal court, however, the limits of federal power can seem elusive.  Jurisdictional elements are often quite easy for the government to prove in the ordinary course of business because only a rare criminal is capable of avoiding travel, telephones, the internet, or products made abroad.  As such, many defense lawyers opt to focus on the other elements of the crime charged.

Riley Lively’s lawyer did not.  He mounted a defense to challenge to the interstate nexus element of 18 U.S.C. § 2251(a) and clarified what exactly the government must prove to secure a conviction in federal court.

18 U.S.C. § 2251(a) prohibits sexually exploiting a minor “for the purpose of producing any visual depiction of” that sexual exploitation (2) if “that visual depiction was produced or transmitted using materials that have” a nexus to interstate or foreign commerce.  Lively traveled from California to Michigan to meet up with a man he “met” in an online chatroom.  One of these chatroom friends cared for a nine-year-old boy.  Once in Michigan, Lively performed oral sex on the boy while his chatroom friend took four photos using a digital camera.  The camera had a memory card that stored these four photos.  At some point, these four images were copied from the camera’s memory card to a hard drive, which everyone agreed (by stipulation) was manufactured in Thailand.  To sum up, there were two sets of images depicting the abuse:  four on the camera’s memory card, and four that had been copied onto the Thai-made hard drive.

At the close of the government’s case, Lively argued he could not be convicted because there was no evidence to support the federal government’s exercise of jurisdiction.  The evidence showed only that Lively intended to produce the original images, but nothing suggested he intended to produce the copies.  And the government had proven only the origin of the hard drive used to create the copies, not the origin of the camera and memory card used to create the originals.  The government rested its case on the Thai-made hard drive, which everyone agreed was made outside the United States and Michigan.  In other words, the government and the district court believed Lively committed a federal crime if he intended to produce the original images, and someone, somewhere, sometime reproduced those images using materials with an interstate nexus.  Prosecutors did not mention or discuss the origin of the camera or memory card used to make the original images.  The district court adopted the government’s interpretation, and Lively was convicted.

The Sixth Circuit disagreed with the government’s broad interpretation of the statute.  But first, it clarified whether copying images from one drive to another constitutes “producing” child pornography for purposes of 18 U.S.C. § 2251(a).  Relying on the “broad and non-technical” meaning of “producing,” the Sixth joined other circuits and held that copying and/or digitally storing those images are manners of production.

Then the court got to the heart of the matter:  Could the government prevail if the Thai-made hard drive was the only material with an interstate nexus?  The answer was “no.”  Instead, the government must prove Lively sexually exploited the minor for the purpose of producing a visual depiction of the abuse, and “that same visual depiction” he intended to be created was “produced using materials that have an interstate commerce nexus.” In other words, the government had to prove the camera or its memory card had a connection to interstate commerce.

So, did Lively’s victory in this hard-fought battle result in an acquittal?  No, Lively lost the war.  The Sixth Circuit scoured the record (and even called the court clerk) to determine the origin of the camera’s memory card.  That memory card bore a trade inscription that doomed Lively’s appeal:  “Made in China.”  Because the jurors had seen and held the Chinese-made memory card, there was enough evidence in the record to uphold the conviction. 

Lively serves as a reminder that no element is a freebie.  If the materials used to produce images were made in the U.S.A. or of unknown origin, prosecutors must work a bit harder to prove the case belongs in federal court and defendants must be subject to harsh federal penalties.  

Thursday, March 16, 2017

Court overturns life sentence on murder conviction due to counsel's lack of advocacy

"Ladies and gentlemen given the dispatch with which you resolved all the holes in the government’s case that I spent two days pointing out, it’s apparent to me that I’m some how not communicated with you during the first part of the trial. So I don’t intend to take anymore of your time in this part."

That argument was apparently the sum of defense set forth in a death penalty penalty phase proceeding.  Defense counsel, in addition to making the above bare bones argument, refused to make an opening statement, did not present any evidence in mitigation, and did not object or make any suggested additions or changes to the jury instructions.  The jury suggested a sentence of life, which the court imposed.

The Sixth Circuit, reviewing the matter for habeas relief, found that counsel's conduct (or lack thereof) amounted to ineffective representation warranting habeas relief.  Phillips v. White, 15-5629   "[C]ourts are generally reluctant to accept something as stark as not investigating or presenting mitigating evidence at capital sentencing as a reasonable tactic. Failing to argue against the death penalty and advocate for a lesser sentence is even less reasonable. For these reasons, Charles’s sentencing performance was clearly deficient."  In fact, the Court found that counsel did so little in defense that prejudice would be presumed.

As a side note, the State had tried to argue that Phillips 2254 petition should be dismissed for failing to exhaust his state remedies.  But the Court noted that the state court had simply never ruled on Phillips claims, despite having them since 2008 (it didn't help that the state sentencing judge, while holding on to the claim, himself got indicted and convicted of a criminal charge.)  Under the circumstances, the "inordinate delay" allowed the claims to be adjudicated by the federal courts.

Wednesday, March 08, 2017

Court clarifies that restitution still makes no sense

Criminal law and money don't play well together, especially with indigent clients. Restitution is perhaps the  most head-scratching part of this crime/money nexus. To a civil lawyer, the thought that a court could enter a $2 million judgment (that is not dischargeable in bankruptcy) against someone without the parties ever conducting a single deposition or hiring a damages expert is patently absurd. But in criminal law it is routine. Defense lawyers are usually so occupied trying to keep their clients out of jail that they spend little time worrying about outlandish restitution requests. Despite mild push-back from the Supreme Court in the most outrageous cases like Paroline v. United States, it is likely that courts will rubber-stamp restitution orders anyway. Today's published opinion in  Sizemore offers an example.

Sizemore addresses a rare federal vehicular manslaughter case. The defendant pleaded guilty and agreed to pay restitution to the victims. While there was no doubt that the victim and his family suffered compensable losses, the court's ultimate order of approximately $230,000 raised several questions. First, was the district court allowed---or even required---to take into account the defendant's ability to pay when entering a restitution award? And second, should the court have reduced the award by amounts that the victims had already received from the defendant's insurance company in compensation for their injuries?

Regarding the first question, the law creates a bizarre contradiction: on the one hand, 18 U.S.C. § 3663 requires a court to consider the "financial resources of the defendant" in determining whether to order restitution; on the other hand, 18 U.S.C. § 3664 prohibits courts from considering the "economic circumstances of the defendant" in determining how much restitution to order. The Sizemore court found no contradiction at all. The law means what it says. But this creates a sort of "restitution gap": if the victim has $1 million in losses, and the defendant cannot possibly pay $1 million, the court could would have the discretion to order (1) no restitution, or (2) $1 million in restitution, but under no circumstances could it order, say, $100,000 in restitution, or some other amount that the indigent defendant might one day have a hope of repaying. 

Regarding the second question, the law specifically states that restitution should be reduced by "any amount later recovered as compensatory damages for the same loss by the victim" in other court proceedings. 18 U.S.C. § 3664(j)(2). The obvious point of this is to avoid double recovery, given that restitution is supposed to make a victim whole, not punish the defendant. But Sizemore rejects this rationale, suggesting that a private settlement "does not preclude a district court from imposing a restitution order for the same underlying wrong." The court even agreed with the district court that an amount paid out to the victim by the defendant's insurance company was not "later recovered" because the insurance company paid before that restitution award was entered. That is, the defendant is punished because his insurance company acted quickly. Huh.