In an amended decision analyzing the federal assault statute, 18 U.S.C. 113, the Sixth Circuit concluded the offenses of assault with a deadly weapon - 113(a)(3) - and assault resulting in serious bodily injury - 113(a)(6), are both crimes of violence under the Guidelines. United States v. Verwiebe, Case No. 16-2591 (6th Cir. Oct. 20, 2017). The original decision issued in late September.
Of particular note, opinion author Judge Sutton concluded that a crime that already includes some use or threat of force automatically becomes an offense involving violent force (and satisfying the force/elements clause) when a dangerous weapon is involved. Put another way, a dangerous weapon element, under this opinion, seems to make the offense a violent use of force offense per se. Specifically, the Court noted that 113(a)(3) "involves violent force because it proscribes common law assault with a dangerous weapon, not simple common law assault."
In looking at the stickier question of serious physical harm, the Court reasoned that the language itself is all that is required. The Court opined, "How could it be possible to suffer serious bodily injury without force capable of producing such injury?" The Court reached that conclusion, in part, by referring to their pre-Johnson decisions in United States v. Anderson, 695 F.3d 390, 401 (6th Cir. 2012), and United States v. Evans, 699 F.3d 858, 864 (6th Cir. 2012).
The Verwiebe decision is particularly significant, because it holds that even indirect force can be sufficient to satisfy the definition of crime of violence in the Guidelines. The well-worn scenario used by many defense attorneys is that of a poisoner - the defendant violates the statute by poisoning another but is not using violent physical force to do so, rendering the statute more broad that the crime of violence (or ACCA) definition. The Sixth Circuit disagreed. Instead, it reasoned, "The 'use of physical force' is not the drop of liquid in the victim's drink; it is employing poison to cause serious bodily harm." As Judge Sutton has noted in other violent felony/ crime of violence predicate opinions, the Court is not interested in every conceivable scenario: "Sentencing law does not turn on such fine, reality-defying distinctions."
Not to bury the lead, but this decision also includes a very important holding regarding the requisite mens rea of predicates. The Sixth Circuit has traditionally recognized that a crime involving only recklessness is not a crime of violence under Guideline 4B1.2. United States v. McFalls, 592 F.3d 707, 716 (6th Cir. 2010). However, the Verwiebe Court concluded that McFalls is presumptively overruled by the Supreme Court's decision in Voisine v. United States, 136 S. Ct. 2272, 2280 (2016). The Voisine decision considered the use of physical force required for a misdemeanor domestic violence offense as defined in18 U.S.C. 921(a)(33)(A)(ii). The Sixth Circuit read Voisine to stand for the proposition that
a use of force can be satisfied by recklessness alone and that its
conclusion "applies with equal force to the Guidelines."The Sixth Circuit's opinion also outlined the Circuit split on this issue.
Friday, October 20, 2017
Friday, October 13, 2017
News Flash: A Defendant has a Due Process Right to Receive a Sentence Based Upon Accurate Information.
In United States v. Earnest Adams, the Sixth Circuit confirmed the obvious: courts should sentence defendants based upon credible information. Ernest Adams is a seventy-one-year old opiate addict with a lengthy criminal history (approximately twenty prior convictions) and an even lengthier history of drug abuse. Mr. Adams ultimately received a five year federal sentence an a three year term of supervised release. After repeatedly testing positive for opiates, the United States Probation Office ultimately recommended that the District Court revoke Mr. Adams's supervised release. Mr. Adams subsequently admitted his violation, and the District Court revoked his supervised release.
During sentencing, the parties, and the District Court, spent a significant time discussing Mr. Adams's lengthly history of drug abuse. The Government apparently caught the District Court's eye, however, by arguing that a shorter sentence would not prove effective by claiming that there was evidence that the brains of addicted persons take at least eighteen months to "reset," i.e. to break them of their addiction. Not coincidentally, the District Court sentenced Mr. Adams to eighteen months imprisonment with no supervised release to follow.
On appeal, Mr. Adams argued that his sentence was both procedurally and substantively unreasonable. Specifically, he argued that the sentence was procedurally unreasonable by relying upon the Government's "reset" argument, by sentencing him to a term of imprisonment that would help him gain access to the RDAP program, and by concluding that the United States Sentencing Commission's recent recidivism study was limited to violent offenders.
The Government audaciously responded that a defendant "does not have a due-process right 'to be sentenced based on accurate information...beyond the facts of the defendant's own actions and criminal record.'" The Court summarily rejected this argument. Of particular importance to the Court was the District Court's reliance upon the Government's "reset" argument. Noting that the Government did not cite a specific study or provide support for its assertion either during the sentencing hearing or in its appellate brief, the Court concluded that Mr. Adams's sentence was procedurally unreasonable because he District Court erred in relying upon an unsubstantiated assertion that had "the veneer of accuracy due to its supposed status as a product of scientific research." Because the District Court based its sentence on the Government's erroneous "reset" argument, the Court also concluded that Mr. Adams's sentence was also substantively unreasonable since it based his sentence on rehabilitative grounds. The Court vacated Mr. Adams's sentence and remanded the matter for resentencing.
Although this author pokes fun of the Government's response here, one can ascribe sincere concern by the District Court toward Mr. Adams and his struggle with addiction. Here is to hoping that the District Court, and Mr. Adams, can fashion a sentence upon remand that will truly help him beat his addiction and avoid further trouble.
Sunday, October 01, 2017
By a vote of 2 to 1, the Sixth Circuit refused this week, in United States v. Robinson, to grant a new trial based on evidence of racial bias infecting a jury.
The three defendants were convicted at trial of running a pay-to-play scheme in a southern Ohio school district. All three defendants are black; the jury had only two black members.
One defense attorney felt the two black jurors looked uncomfortable during the verdict and jury polling. So after the trial, he hired a private investigator to interview the jurors (in violation of court rules and the court's instruction not to contact them).
The two jurors said that they were initially unconvinced of the defendants’ guilt. But then this happened (as summarized in Judge Donald's dissent):
The white jury foreperson accused the two black members of the jury of deliberately trying to hang the jury because of their shared race with the Defendants, raising the suggestion that the two jurors were protecting Defendants because “maybe [they] felt [they] owed something to [their] black brothers.” The foreperson also stated, “I find it strange that the colored women are the only two that can’t see” the defendants’ guilt. These comments escalated the tension in the jury room to the point that the marshal’s intervention was required.
The defendants moved for a new trial before sentencing. The district court denied the motion based in large part on Fed. R. Evid. 606(b)’s admonition against using juror testimony to impeach a verdict.
On appeal, the defendants argued that Pena-Rodriguez v. Colorado, 137 S. Ct.855 (2017), decided during pendency of the appeals, allowed impeachment of the verdict based on the foreperson’s racist remarks.
The majority decision
Judge Rogers, writing for the majority, distinguished Pena-Rodriguez on two grounds:
- Unlike in Pena-Rodriguez, the defense attorney violated a local court rule and a specific instruction from the judge not to contact jurors.
- The majority concluded that the foreperson’s remarks didn’t meet the requirement that juror racism rise above “offhand comment[s] indicating racial bias or hostility." Rather, Pena-Rodriquez requires a clear statement “tend[ing] to show that racial animus was a significant motivating factor in the juror’s vote to convict.” As the majority read this requirement, there can be no impeachment of the jury in this case because the foreperson “never suggested that she voted to convict [the defendants] because they were African-American."
Judge Donald issued a strong dissent taking aim at the majority’s efforts to distinguish Pena-Rodriguez and tracing the history of racial bias in jury issues, ending with this conclusion:
The history of racial bias in the courtroom is not only a stain on our shared past; its corrosive effects persist to this day. The enduring shadow of bias also dims public confidence in the fairness of the courts. The majority’s decision represents a step backwards from the strides we have made towards eradicating this disgraceful legacy from our criminal justice system. For the reasons set forth above, I differ with the majority with regard to the issues of racial animus within the jury and to the Allen charges, which, operating in a mutually reinforcing manner, exerted pressure on the two black jurors who were not prepared to vote for a guilty verdict. In combination with the racial animus contained in the jury foreperson’s remarks, these circumstances raise serious doubts about the fairness and impartiality of the jury’s decision.