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.