Thursday, September 28, 2017

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

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

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

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

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

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

Thursday, September 21, 2017

Court clarifies Mathis is not a new rule

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

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

Friday, September 15, 2017

Crazy or Cunning Like a Fox?

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

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

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

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

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

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

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

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

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

Thursday, September 14, 2017

The Post-Hurst Hydra Loses a Head

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

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

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

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

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

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

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,