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 Pastebin.com 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.

Monday, March 06, 2017

The Beckles disappointment

The Beckles decision issued today, and it did not go well. If you were not in the trenches after Johnson, if you did not file hundreds of 2255 petitions raising claims based on Beckles, it will be difficult to understand the scale of this disappointment. Worse, if you are one of the tens of thousands of federal prisoners sentenced under the career offender guideline and awaiting the outcome of this case, the decision is devastating.

In short, Beckles holds that the advisory sentencing guidelines are not susceptible to a due process vagueness challenge. They are discretionary, you see, so the vagueness doctrine's twin emphasis on providing notice and preventing arbitrary enforcement do not apply. If a judge can sentence anyone to any sentence within the statutory range, then why would someone need notice of the guidelines? This holding will create some cognitive dissonance for federal defenders everywhere, for whom the question of whether a client is a career offender determines the entire course of any given representation, especially the plea process. But that is behind us for now.

So what is left? First, it is important to note that this opinion is limited to the discretionary guidelines, not the pre-Booker mandatory guidelines. Any mandatory guidelines cases should still be alive. Second, the decision states that even though a vagueness challenge under the due process clause must fail, the Court has nevertheless recognized that, under the Eighth Amendment, "a district court’s reliance on a vague sentencing factor in a capital case, even indirectly, can taint the sentence." Should Beckles petitioners raise Eighth Amendment claims? Are there other appeal issues remaining?

The phone calls from disappointed clients will begin today, but the process of digesting this decision will continue for some time.

Wednesday, March 01, 2017

Copy/paste for cert petition

Judges Merritt, Batchelder, and Rogers do NOT like Sixth Circuit precedent on an issue and, boy howdy, they tell counsel just what needs to be done to get the Supreme Court's attention. John Turner v. United States, No. 15-6060 concerns at what point the Sixth Amendment right to counsel (and thus effective assistance of counsel) begins. Sixth Circuit precedent says it does not attach until after formal charges are filed. As detailed in Turner, there is a Circuit split on the issue, and it is an important issue because of just how often defendants run up against this sort of state/federal prosecution.

Quick facts: Mr. Turner was charged with robbery in state court. Counsel was appointed to represent him in the state court prosecution. While the state charges were pending, the U.S. Attorney's office reached out to his attorney to discuss a plea in federal court to as-yet-unindicted charges arising from the same conduct. If Mr. Turner accepted the offer pre-indicment, he would get 15 years in prison. After indictment, he faced a mandatory minimum sentence of 82 years. Mr. Turner rejected that offer. He was charged federally. He accepted a less-favorable plea deal. He brings a 2255 based on ineffective assistance of counsel during the initial pre-charge negotiations. If Mr. Turner has the right to counsel pre-charge, he has the right to effective assistance of counsel. If he does not have the right to counsel pre-charge, the courts cannot even contemplate an IAC claim.

While the Supreme Court has recognized the right to effective assistance of counsel during plea negotiations, it has yet to consider the right to counsel in preindictment plea negotiations. The Sixth Circuit has strongly adhered to the notion that the right to counsel attaches once formal charges are filed. Turner notes that five other circuits have a similar bright-line test, while four "allow a rebuttable presumption to the argument that the right to counsel attaches only after formal charges are filed." Turner even gives links to articles on the subject.

It's an interesting opinion given its frankness about the federal process and the need to have effective counsel at every critical stage. Hopefully, Mr. Turner will take the Sixth up on their very thinly veiled suggestion for pursuing Supreme Court review.

Monday, February 13, 2017

The Right to Counsel of Choice

   In United States v. Powell, the Sixth Circuit held the district court abused its discretion by allowing one but not both of defendant Earnest Proge's attorneys to withdraw as counsel. Mr. Proge raised his dissatisfaction with counsel during the final pretrial conference. He took issue with what he perceived to be his attorneys' efforts to force him to enter into a plea agreement. Subsequently, counsel briefed its request to withdraw as counsel.

While the district court concluded that Mr. Proge was free to reject his counsel's advice and so there was no breakdown in the attorney-client relationship, the Sixth Circuit held the record supported a different conclusion. Mr. Proge's attorneys told him they had not been retained to represent him at trial, were not prepared or equipped for trial, and would not represent him if he chose to go to trial. Writing for the majority, Judge Guy held, "The conflict between Proge and his attorneys resulted in a complete lack of communication that weighs strongly in his favor."

The Sixth Circuit also noted the need to balance the defendant's right to counsel of choice with the public's interest in the efficient administration of justice. Because the district court put off making an inquiry, despite a specific request for new counsel, it was partly responsible for the short time between the denial of Mr. Proge's request and trial. In holding that Mr. Proge's Sixth Amendment rights were violated, the Sixth Circuit relied on the timely initial request for new counsel, the adequate but delayed inquiry of the district court, and the complete breakdown in the attorney-client relationship.

Judge Moore wrote a separate opinion, concurring in part and dissenting in part, in which she asserted co-defendant Carlos Powell should also have obtained relief from the district court's denial of his Faretta motion seeking self-representation. She also concluded that Mr. Proge's conflict with his counsel, absent any other factors, "should have impelled the district court to grant Proge's request to substitute counsel.

Sunday, February 05, 2017

Court Affirms Admission of "Prior Bad Acts" Against Sexual Assault Defendant.

In my blogs, I frequently try to write a humorous quip about the defendant, defense counsel, or the courts.  I can find nothing, however, humorous in the facts found in United States v. LaVictor.

In this case, the defendant, LaVictor, and his girlfriend, returned to LaVictor's mother's house on the Sault Ste. Marie Tribe of Chippewa Indians Reservation after a night of heavy drinking.  Early the following morning, LaVictor contacted emergency services and told them his girlfriend was bleeding from her vagina.  Subsequent medical examinations revealed evidence of sexual assault, which the girlfriend confirmed in her statements to the authorities.  The girlfriend subsequently repeated her allegations before a federal grand jury, which returned a five-count indictment charging LaVictor with: (1) attempted sexual abuse in violation of 18 U.S.C. § 2242(2)(B); (2) aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1); (3) assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6); and (4) domestic assault by a habitual offender in violation of 18 U.S.C. § 117.

After filing various pre-trial motions, LaVictor proceeded to trial.  During the trial, the Government called LaVictor's girlfriend as a witness.  The girlfriend subsequently recanted her testimony and testified that she consented to sex with LaVictor, even if he was "rough."  Over LaVictor's objection, the district court admitted the girlfriend's grand jury testimony as evidence of her prior inconsistent statements.  Additionally, after conducting a Daubert hearing, the district court permitted the Government to offer the testimony of an expert witness to testify about victim recantation.  As a final blow to LaVictor's defense, the court permitted the Government to introduce several of LaVictor's former girlfriends, who testified about uncharged episodes of prior sexual abuse.  It took the jury less than three hours to return guilty verdicts on all six counts.

LaVictor raised several arguments in favor of a reversal on appeal, including, among other things, the district court's decision to admit prior bad act evidence under FRE 404(b) and the entire grand jury transcript.  In a lengthy published opinion, the Court affirmed LaVictor's conviction.

Of the many interesting holdings in the Court's opinion, it first dealt with the testimony of the recantation expert.  Although it prior pronouncements on this issued had "been more muted," the Court held that expert testimony regarding a domestic violence victim's propensity to recant was relevant and not unduly prejudicial in LaVictor's case.

The Court then addressed the district court's decision to permit three of LaVictor's previous girlfriends to testify that they had previously been sexually assaulted by him, although they never reported the incidents to the police, and the police never charged him with a crime.  Although the Court acknowledged such testimony is generally prejudicial in a sexual assault case, it held that the district court did not err in concluding the evidence was probative to show LaVictor's intent to sexually assault his then-girlfriend and that the assault was not an accident or mistake.  The Court further held that the probative nature of the testimony outweighed the prejudice it caused under FRE 403.  Finally, and perhaps most importantly, the Court concluded that even if the district court had erred, any error in admitting the testimony was harmless in that it would not have affected the jury's verdict.

As a final note, the Court made an interesting holding regarding the definition of an "intimate partner" under the habitual domestic assault statute, 18 U.S.C § 117.  On appeal, LaVictor argued that the statute did not apply to him because he was not living with his girlfriend at the time he committed the sexual assault.  Noting that the Sixth Circuit had not yet defined the term "intimate partner," the Court examined similar language found in 18 U.S.C. § 2266 -- a statute requiring states to recognize protection orders issued in other states -- and concluded that the term applied to LaVictor and his girlfriend since they had previously been engaged in a lengthy, romantic relationship.

While the facts of this case are sad and represent an all too common occurrence, the Court's lengthy opinion provides a great road map of the many issues counsel might face in defending a sexual assault case in Federal court.  Counsel engaged in such a case should review this decision.

Thursday, February 02, 2017

Untimely Pre-Trial Motions: Clarification for "Unwary Counsel"


The Court has had a relatively quiet week with few published opinions.  One opinion, however, is worth a brief discussion.  In United States v. Trujillo-Molina, the defendant, who had been indicted for possessing a firearm while being illegally and unlawfully present in the United States, filed a motion to dismiss the indictment arguing that he was not, in fact, illegal because he had received relief from removal under ICE's Deferred Action for Childhood Arrivals ("DACA") program.  The problem, however, was that he filed the motion one month after the district court's pre-trial motions deadline.  The District Court subsequently denied the motion as untimely pursuant to Fed. R. Crim. P. 12.  

On appeal, the Court held, in an unpublished opinion, that the District Court did not abuse its discretion in denying the defendant's motion to dismiss as untimely.  While the Court's main holding was no surprise, the Court attempted to clarify, in a footnote, a point that it worried would cause confusion for "unwary counsel."  In particular, the Court reiterated that a party who fails to make a timely motion pursuant to Rule 12(b)(3) does not necessarily waive the issue he failed to raise in the motion.  Instead, the Court will review the issue for plain error.  Thus, the failure to timely file a timely pre-trial motion does not necessarily foreclose appellate review of the issue, although a defendant will have a difficult time in any appeal challenging the district court's denial of his pre-trial motion.

Sunday, January 29, 2017

Identity Theft: Up in the Air?


The line between mere fraud and identity theft is murky. The Sixth Circuit has repeatedly found that the use of another person’s signature does not constitute identity theft so long as the identity of that other person is not purloined. While this holding is both logical and guards against co-extensive reach of the fraud and identity theft statutes, it arguably created a circuit split. Now, in UnitedStates v. White, the Sixth Circuit has narrowed what “use” of a “means of identification” under Section 1028A is.

Ms. White was a travel agent particularly skilled at obtaining low cost flights for her clients. One of her most effective tactics, unfortunately, was to misrepresent the ticketed passenger’s military status. The airlines had caught her before and revoked her agency’s accreditation. But she found work as a subcontractor for another agency. Once she began, the military status discounts of that agency’s customers increased exponentially. Once confronted, White doubled down by creating false military identification cards to support the discounts. There is no crime so bad that a cover-up can’t make worse.

And it was just that cover-up that the Government asked the Court to focus on. Instead of focusing on the use of a name when obtaining the discounted fares, the Sixth Circuit distinguished prior cases (U.S. v .Miller and U.S. v. Medlock) by focusing on the creation of the identify identification cards—which both constituted a means of identification and were used by White. With that, the Sixth Circuit retained its distinction between the use of a name and the use of an identity, but has apparently signaled its continued effort to narrow the range of circumstances in which that distinction may have application.

Friday, January 20, 2017

All in the family: Deference to trial strategy trumps IAC claim related to married attorneys’ conflict of interest

Spouses share many things, but there’s some things they shouldn’t—like clients. Or so teaches the sad tale of Ronald Kelly.

When attorney Greg Robey lost at trial representing Kelly, he turned Kelly’s appeal—raising ineffective assistance of counsel—over to his wife and law partner, Margaret. Worse yet, Greg then showed up at oral argument to present the IAC claim against himself! The appeal court, flagging this yowling conflict of interest, refused to adjudicate the IAC claim. It also denied Kelly's appeal.

The same court, however, overturned Kelly's co-defendant’s conviction, concluding that the trial court erred in rejecting his attorney's request for a lesser-included-offense jury instruction.

The Robeys hadn’t raised this now-successful jury instruction issue at trial or as part of their IAC claim on direct appeal. So they tried to jump on the bandwagon, arguing for the first time in a petition for en banc review that Greg was ineffective for failing to raise the issue. But the appeals court wouldn’t entertain the claim at that stage and, moreover, once again dinged the Robeys for the persistent conflict of interest.

At this point, Kelly fired the Robeys, and the Ohio Public Defender stepped in. But the damage was already done. The defender moved to reopen the direct appeal, arguing that the conflict of interest prevented Kelly from raising meritorious appellate claims, including the jury-instruction issue. In denying the motion, the appeals court reasoned that Greg’s decision to forgo a lesser-included-offense instruction for an all-or-nothing approach fell under the umbrella of reasonable trial strategy. Unfortunately for Kelly, he had already sought state post-conviction relief while represented by the Robeys during the pendency of his direct appeal, without raising the jury-instruction issue, leaving this avenue of relief foreclosed.

Kelly then headed to federal court, seeking habeas relief for the ineffective assistance of both his trial and appellate attorneys. No go. The Sixth Circuit, in an opinion from Judge Boggs, reasoned that the trial IAC claim failed because Kelly didn’t raise it on direct appeal, leading to procedural default. Further, the court refused to excuse the default on the basis of appellate IAC: the trial IAC claim would have been meritless, the court reasoned, because in its view Greg’s all-or-nothing defense wasn’t objectively unreasonable, despite the fact that it conflicted with no less than 10 eyewitness accounts

The court acknowledged in conclusion how screwed up Kelly's case was because of "the poor performance of his counsel of direct appeal" but emphasized the deference afforded to trial counsel's strategic decisions. 

Wednesday, January 18, 2017

The long arm of supervised release


It’s only three pages long but packs a ... punchy lesson about “termination” versus “revocation” of supervised release. The Sixth Circuit held today in United States v. Cross that district courts retain jurisdiction over defendants on supervised release even after supervision is revoked—at least for violations predating the revocation.

After serving 5 years for a marijuana offense, Robert Cross used drugs on supervision. In response, the district court revoked supervision and tacked on 8 more months in prison, with 2 more years supervision. Then, two years later, while Cross was still on this extended supervision, the court learned that he had committed a state theft offense before the first revocation hearing. The court gave him an extra day in prison and 5 more years of supervision.

Cross challenged the court’s jurisdiction to revoke the second time, but the Sixth Circuit wasn’t having it. The difference, the court explained, is between revocation and termination: Termination discharges supervision altogether, 18 U.S.C. § 3583(e)(1); revocation merely requires part of the supervision to be served in prison, id. § 3583(e)(3). Cross was only revoked the first time, not terminated, and thus the district court retained jurisdiction to revoke him again. It makes no difference, the Sixth Circuit reasoned, that § 3583(h) says courts may impose a term of supervised release following re-imprisonment. In the court’s view, this statute simply acknowledges the reality that a defendant continues on release after a term of re-imprisonment unless the court “terminates” supervision.