Tuesday, April 17, 2018

Sixth Circuit Again Denies Johnson Habeas Relief

The Sixth Circuit's recent published decision in Potter v. United Statesaffirming the district court's denial of a post-Johnson habeas petition, is yet another decision restricting Johnson habeas relief.  In this case, Potter filed a habeas petition requesting resentencing in light Johnson by claiming his Georgia burglary conviction no longer qualified as a "violent felony" after the Supreme Court's decision.  The district court denied his motion, holding that the conviction still qualified under the Armed Career Criminal Act's ("ACCA") enumerated offense clause.

Potter fared no better on appeal.  Noting that Potter's presentence report did not specify under which clause his burglary conviction qualified under the ACCA and that he did not challenge that part of the report, the Court concluded the district court could find that the conviction qualified under the enumerated offense clause.  It was up to Potter, the Court concluded, to prove the district court relied upon the ACCA's now-defunct residual clause.  Further, the Court deferred to the district court, which, it claimed, was in the best position to know whether it relied upon the residual clause.

On a parting note, the Court also issued a general advisory to future Johnson habeas cases: if you are going to seek a resentencing under Johnson, bring some proof the district court relied upon the residual clause.  Johnson, the Court held, did not "open the door" for collateral attacks any time the district court may have relied upon the residual clause.

Court Holds Third-Party Exception Applies to Cell Phones

May police officers reasonably rely upon the apparent authority of another to unlock and search a cell phone?  According to the Sixth Circuit in United States v. Gardner, they may.

Gardner, an adult, was in an intimate relationship with B.H., who was seventeen, and thus, a minor.  Gardner began positing invitations for dates and sex with B.H. on the website, Backpage.com.  His postings invited "customers" to call or text B.H. using his cell phone number.  When B.H. began objecting to the meetings, Gardner threatened her.

Gardner's activities soon caught investigators' attention.  On October 10, 2017, Gardner posted an advertisement for B.H. on Backpage and listed his cell phone number as the contact number.  An undercover officer called the number an arranged a meeting with B.H. at a local motel.  When B.H. arrived, the officer disclosed his identity and alerted his fellow task force officers, who entered the hotel room and began conducting a search.  During their search, officers found a white iPhone, which B.H. said belonged to her.  In addition, B.H. authorized the officers to search the phone and provided them with the pass code.

A federal grand jury subsequently indicted Gardner for one count of trafficking a minor for sex and one count of producing child pornography by using his phone to distribute pictures of B.H.  Prior to trial, Gardner filed a motion in limine seeking to suppress evidence obtained from his cell phone.  Crucial to Gardner's argument before the District Court and before the Sixth Circuit was his claim B.H. lacked the apparent authority to consent to the search of his cell phone.  Both courts disagreed.  Although it recognized the "singular" role cell phones play today, the Court concluded that "the third-party consent exception to the warrant requirement applies to cell phones all the same...."  The critical question, the Court then concluded, was whether a reasonable officer could believe B.H. had authority over the phone based on the facts available to them at the time of the search.  Noting how Gardner and B.H. had used the phone to set up their "meetings," that B.H. regularly had the same phone with her during such meetings, and that B.H. knew the pass code to the phone, the Court held a reasonable officer would have concluded B.H. controlled the phone and that B.H. had the apparent authority to permit a warrantless search of Gardner's phone.

Although he has not researched this issue, the author is curious whether the result would have been different had B.H. admitted it was not her phone but that she still knew the pass code.  If a person gives a third party their pass code, does that fact, by itself, constitute apparent authority?


Monday, April 09, 2018

Sixth Circuit Curbs Anticipatory Warrants

The Sixth Circuit last week, in United States v. Perkins, issued a very helpful decision for criminal defendants, affirming suppression of evidence obtained through a faulty "anticipatory warrant." Specifically, the court held that, if a warrant requires delivery of a package to a particular person, then its delivery to another person, even at the same address, is not enough to establish probable cause.

Anticipatory warrants require a "triggering event" to establish probable cause. If that triggering event doesn’t occur, and police searched anyway, suppression ensues, right?

It isn’t quite that easy. Warrants must not be read "hypertechnically" but in a "commonsense fashion." For example, in an earlier case, the warrant required that a package be delivered to a residence and "taken by someone inside." But officers actually delivered the package to someone who had just left the house and then left the premises altogether. It would be "hypertechnical," the court said, to read the warrant to require the package to be taken by someone remaining in the house.

In Perkins’s case, the warrant required hand delivery to Perkins as the triggering event. It was "hardly hypertechnical," the court ruled, to read this language to mean exactly what it says. So when officers (who hadn’t actually read the warrant) delivered the package to Perkins's fiancĂ© instead of Perkins himself, there was no probable cause to search.

Judge Thapar, writing for a unanimous panel, rejected the government’s argument that the court could read the warrant to require delivery "to anybody inside the residence with apparent authority to accept delivery." Not so, he said, as "the replace-some-words canon of construction has never caught on in the courts."

Notably, the government did not argue that the search was “reasonable” under the Fourth Amendment even if the warrant was invalid, leaving that fight for another day.

Friday, March 30, 2018

Theft of Government Money Conviction Overturned - It Wasn't Government Money

United States v. Osborne

Defendant Osborne stole funds from Document and Packaging Brokers, Inc., who obtained their money from the US Government to run a program to increase recruiting to the Air National Guard.  The Government tried and convicted Osborne on the theory that the funds given to DPB were still Government funds, because the Government placed restrictions on the use of the funds, required reporting on the use of the funds, and created the program that was run by DPB. 

On appeal, Osborne argued that the Government did not retain "sufficient supervision and control over the funds involved such that the funds retained their federal character."  The Court agreed, finding, under a fact-bound inquiry, that (1) the Government did not prove that they maintained a reversionary interest in the funds, (2) the Government did not place sufficient restrictions on the use of the funds, and (3) the Government did not place sufficient accounting requirements on the use of the funds.  The Court also noted "It seems to us that the prosecution made the most unremarkable attempt to prove its case."  "Thus, we hold the government failed to provide sufficient evidence to support Osborne’s conviction under 18 U.S.C. § 641."

Congratulations to AFPD Andrew Brandon on a job well done.

Thursday, March 29, 2018

Another Playpen suppression reversed

United States v. Tagg

"The unique challenges of child-pornography crimes demand a practical approach to the probable-cause question."  With that standard in mind, the Court in Tagg overturned a district court's suppression of a search warrant.  This is another case coming as a result of the Government's operation of the Playpen website on the Dark Web. 

The Court first delineated between evidence supporting a conviction and that supporting a search warrant.  "[E]ven if the person never viewed illegal child pornography, knowingly accessing a child-pornography website with the intent to view illegal materials is itself a criminal act. It follows from this language that probable cause to search Tagg’s house would exist even if he was 'curiosity
shopping' for child porn on Playpen but never actually viewed an illegal image."  Thus, the actions in accessing the website and browsing it were sufficient, and the Government was not required to prove that actual images were accessed and downloaded in order to obtain the warrant.  "[T]he affidavit
need not “show” that Tagg had unlawful intent—it only needed to allege facts that create a reasonable probability that Tagg had an unlawful motive."  The Court thus reversed the district court's suppression decision.

A final note: the opinion does a good job of explaining, in simple terms, how Tor, Dark Web, and IP addresses work.  If you need to explain these to someone, this is a good primer.

Gun possessed 3 months earlier NOT relevant conduct of later gun possession

United States v. Amerson

In May, 2016, Defendant Amerson got into an argument and was shot.  During the investigation, officers found a firearm in Amerson's friends vehicle.  Amerson's DNA was on that firearm.  In late August, 2016, Amerson's apartment was searched, and another firearm was found.  Amerson was prosecuted under 18 U.S.C.  § 922 for the firearm found in August.  At sentencing, the court increased the sentence under USSG § 2K2.1(b) for the May 2016 firearm.  This increased his sentencing range from 57-71 months to 70-87 months.  Amerson received a sentence of 76 months.

On appeal, Amerson argued that any possession of firearms in May was not part of the same "common scheme or plan" as the August possession.  And the Court agreed.  The Court found that, in order to meet the common scheme or plan standard, the Government was required to prove "similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses."  Here, the Court noted that the Government had not proved regularity - proving that the conduct occurred on two occasions was not enough - as every relevant conduct argument involves at least two occasions.  Second, the Court held that there was little similarity between the possessions.  Finally, the Court held that "while the government showed some evidence of temporal proximity, a several-month gap between illegal possessions is not strong enough timing evidence to overcome a complete lack of regularity and prove that the possessions were part of the same course of conduct."    The Court therefore remanded for resentencing. 

Monday, March 26, 2018

NY robbery a violent felony under the force clause

"Any 'violent felony' trek requires some preparation for the climb." And so begins the Sixth Circuit's latest foray into what constitutes a violent felony under the "force clause" of 18 U.S..C. § 924(e).  This time, the prior conviction at issue was a prior conviction for robbery in the second degree under New York law. 

The Court in its analysis decided to go through a checklist (complete with check marks at the end of each paragraph) to determine the standard to be applied, and then to apply that standard to the New York statute.  In the end, the Court determined that (1) the New York statute was divisible, (2) the statute for which the defendant was convicted categorically required a finding of the use of physical force, and (3) an analysis of New York law confirmed that the focus of the statute was on physical pain or injury, not merely physical contact.

In conclusion, the Court warned that there was a future danger in the path of inquiry created by analyzing how the state interprets its statutes. "If we hyper-scrutinize the factual details of every prior conviction and hypothesize generalizations based on a few-sentence analysis in such cases, that takes us far afield from the categorical approach’s mandate—and creates an unfortunate irony to boot. How odd to dissect the precise contours of all New York robbery convictions but one: the conviction of today’s criminal defendant. We should pause before adopting a mindset that reintroduces—and multiplies—some of the very ills the categorical approach was meant to cure. Else, the occasional risks of the modest slope (reviewing state cases to understand the meaning of a state criminal law) will surpass the perils of the steep slope (reviewing the facts of each defendant’s relevant state court convictions). "

Of note, the opinion also contains a dissent by Judge  Merritt, in which he submits the Rule of Lenity should be applied to account for the variety in which New York treats its own statutes.

Sunday, March 25, 2018

Right To Counsel Inapplicable to Preindictment Plea Negotiations En Banc Sixth Circuit Holds

John Turner went on a robbery spree in Memphis. He was apprehended and indicted by a Tennessee grand jury on multiple counts of aggravated robbery. He retained a lawyer, who engaged in plea negotiations with state prosecutors. The federal government got involved, and an AUSA informed Turner’s lawyer that his office intended to indict Turner and charge him with robbery and firearms charges carrying for the firearms charges alone a mandatory minimum sentence of 82 years. However, the AUSA made a plea offer with a 15 year federal sentence that would resolve all charges, state and federal, the offer to expire upon Turner’s indictment by a federal grand jury.

Before the en banc Sixth Circuit in Turner v. United States were the following questions: (1) Did Turner have a Sixth Amendment right to counsel to advise him in these preindictment plea negotiations with the United States?; and, (2) Did it make a difference that Turner already faced a state indictment and charges based on the same conduct that underlay the federal plea?

The Court held that Supreme Court precedent, Kirby v.Illinois, 406 U.S. 682 (1972) and United States v. Gouveia, 467 U.S. 180(1984), established a “crystal clear” demarcation for the right to counsel to attach “only at or after the time that adversary judicial proceedings have been initiated against him” and that the “Supreme Court has repeatedly rejected attempts by criminal defendants to extend the Sixth Amendment right to counsel to preindictment proceedings[.]” So Turner had no Sixth Amendment right to counsel with respect to the plea negotiations with the United States government.

The Court also held that Turner’s state indictment made no difference, because the state and federal charges were not the “same offense,” even if based on the same conduct and having the same essential elements. This ruling was derived from the “dual sovereignty doctrine” which the court concluded was followed by a majority of circuits. The dual sovereignty doctrine dictates that two distinct offenses are committed when conduct violates simultaneously both state and federal law.

Judge Bush concurring in dubitante utilized a “what did the average Joe (or Josephine) from the Founding era understand” approach to the terms “accused” and “criminal prosecution,” that offered a persuasive historical analysis and would seem a good blueprint for the Supreme Court to rule that the Sixth Amendment right to counsel applies to preindictment plea negotiations. First, dictionaries from the late 18th century indicate that “accused” had then a general, common meaning “that was broader than ‘indicted.’” Second and similarly, “prosecution” had a general, common meaning broader “than referring only to the post-indictment critical stages of a judicial criminal action.” In addition, that the Fifth Amendment applies in “all criminal cases” and Article III refers to “cases and controversies” would suggest that a “criminal prosecution” could “begin before a ‘criminal case’ commenced.” Finally, Chief Justice Marshall, sitting then in a trial court, had ruled that former Vice-President Aaron Burr had a Sixth Amendment right to compulsory process prior to being indicted when brought up on treason charges. 

A petition for certiorari will presumably follow; the Sixth Circuit undertook here great effort to highlight for the Supreme Court its need to further examine its Sixth Amendment jurisprudence. 

Saturday, March 24, 2018

Finding Search Warrant Affidavit Sufficient, Sixth Circuit Reverses District Court's Suppression Order

Search warrant affidavits vary from case to case, and, as a result, a flexible "totality of the circumstances" approach is used to assess their constitutional sufficiency. The Sixth Circuit's latest decision in this area is United States v. Hines, where it reversed a district court's suppression order.

Louisville, Kentucky police applied for and obtained a search warrant for 668 Eastlawn Avenue in that city on December 15, 2015. Some seven months earlier, an unidentified but "reliable confidential informant" had informed police that the defendant, William Hines, was selling "large amounts of heroin" out of the residence. Surveillance in the interim had provided some confirmation of Hines' connection to the place. The day prior to the warrant application, the informant (referred to in the opinion as "CS1") had informed police that he had seen "an amount of heroin" at 668 Eastlawn that date. Another "reliable confidential source" ("CS2" in the opinion) informed police that Hines had contacted him and proposed a meeting at a nightclub to discuss a possible heroin transaction. Police obtained some confirmation by tailing Hines to the nightclub. Also, Hines had long been a target of law enforcement: in 2007 wiretaps had identified him as a large-scale cocaine trafficker; wiretaps in 2012 had suggested he was also a significant heroin trafficker; and an arrest that summer right outside 668 Eastlawn had recovered $33,500 from an individual who confirmed prior cocaine and heroin transactions with Hines.

This was enough, the Sixth Circuit concluded, to establish probable cause to  sustain the warrant. First, the affidavit's failure to name either CS1 or CS2 or explain how "they previously provided accurate information" was offset by its description of "both informants' bases of knowledge for their tips about Hines' trafficking drugs out of 668 Eastlawn." Second, while "substantial police corroboration" of the informants' assertions may have been unnecessary given "the informants' bases of knowledge," officers did corroborate the tips: some surveillance between July and December 2015, had confirmed Hines' connection to 668 Eastlawn, and they had tailed Hines to the nightclub to meet with CS2, which confirmed at least part of his story. The court explained that police corroboration need not be of criminal activity, that corroboration of even innocent conduct may support a positive assessment of an informant's tips.

Robert L. Abell

3X Guidelines Sentence for Would-Be Jihadist Upheld

Khalil Abu Rayyan became fascinated by the Islamic State. He lauded videos exhorting murder, distributed on Twitter a photo of a jihadist-inspired execution, posted online another photo showing his readiness for violence on behalf of the Islamic State, and expressed Dirty Harry-like satisfaction watching videos of "Islamic State fighters throwing prisoners from the tops of buildings."

Lying on a federal firearms purchase form tripped Rayyan up. He bought a .22 caliber pistol and, while doing so, declared on the purchase form that he did not use illegal drugs. Two days later, things started to unravel when he was stopped by police for speeding and the .22, along with some marijuana, was recovered from his car. Apparently following his arrest, Rayyan admitted he'd "smoked marijuana regularly for years."

Unchastened, Rayyan attempted unsuccessfully to buy another firearm a month later. Again, he denied illegal drug use on the federal purchase form. But the vendor denied the sale because of Rayyan's arrest the previous month. Following this and perhaps in response, Rayyan and a friend went to a firing range where they shot an AR-15 and an AK-47; Rayyan later posted a photo online of himself with his rented AK-47 while "making a pro-Islamic State hand gesture." Soon after this episode Rayyan explained online to "an undercover FBI employee posing as a 19-year-old woman" his plan to commit mass murder at a church and regrets when the plan fell through.

Rayyan was charged with two firearms-related offenses: lying on a firearms purchase form, a violation of 18 U.S.C. 922(a)(6); and, a violation of 18 U.S.C. 922(g)(3), which bars regular illegal drug users from possessing a firearm. He pleaded guilty and his guidelines sentencing range was 15-21 months. At issue before the Sixth Circuit was the 60 month sentence imposed by the district court, which held a three-day sentencing hearing.

The Sixth Circuit affirmed the sentence, finding it both substantively and procedurally reasonable. The court summarized the evidence as follows: "Rayyan took an interest in a terrorist organization, lied to obtain a firearm, lied again while trying to buy another firearm, rented rifles for target practice while under investigation for firearms-related crimes, and discussed carrying out his own attacks with a woman he met online." The affinity for terrorism, history of thinking through how attacks might be conducted, and the willingness to "flout the law to obtain firearms" provided good grounds, the court concluded, for the district court's sentence.

Two other points warrant mention. One of Rayyan's contentions was that his sentence had improperly considered his online viewing habits and statements, a violation, he claimed, of his First Amendment rights. In response, the Sixth Circuit offered the conflicting assertions that "[a] defendant may have a right to post more or less what he wants [online]," but "the government may hold defendants to account for what they say if that speech and related conduct reveals a criminal element, a motive, or a factor that aggravates a sentence." Given the generality and breadth of the 3553 sentencing factors, this last iteration -- "a factor that aggravates a sentence" -- can be prone to misapplication.

Second, two psychologists, one retained by Rayyan and one by the government, both opined that he did not suffer from a mental illness predisposing him to violence. This evidence, however, did nothing, according to the Sixth Circuit, to undermine the district court's conclusion that Rayyan posed a serious risk to the community.

The decision is United States v. Rayyan.

Robert L. Abell

Friday, March 16, 2018

Sixth Circuit again considers what is a "crime of violence" under the Guidelines

“This case returns us to the serial litigation over the meaning of the terms ‘physical force’ and ‘crime of violence.’” So begins the opinion in United States v. Morris in which the Sixth Circuit held that a felony conviction for domestic assault under Michigan law (M.C.L.) §750.81 is a crime of violence under the residual clause of the Guidelines. U.S.S.G §4B1.2(a)(2).

Melvin Morris was sentenced before Amendment 798 took effect and the Sentencing Commission removed the residual clause from §4B1.2 of the Guidelines. The district court determined that Mr. Morris was a career offender and on appeal he argued that his two prior felony convictions for domestic assault under M.C.L. §750.81 were not crimes of violence.
Since an offense under M.C.L. §750.81 is not an "enumerated offense" (§4B1.2(a)(2)), the Sixth Circuit considered whether the prior convictions were crimes of violence under the “elements clause” (§4B1.2(a)(1)), or the “residual clause.” (§4B1.2(a)(2)).The court concluded that Michigan’s domestic violence statute is not a crime of violence under the “elements clause” because “a person can commit a battery by mere offensive, but not harmful, touching of a victim’s person or of ‘something closely connected with’ the victim’s person.” Moreover, the “offensive touching can be accomplished without using force capable of causing physical pain or injury.”

In deciding whether the Michigan statute fell within the “elements clause,” the Sixth Circuit rejected the Government’s argument that the definition of “physical force” in §4B1.2(a)(1) should be given the meaning expressed in United States v. Castleman, 134 S.Ct. 1405 (2014). That case involved 18 U.S.C. §922(g)(9), which prohibits a person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. A “misdemeanor crime of domestic violence” is defined in part as a crime that “has, as an element, the use or attempted use of physical force.” 18 U.S.C. §921(a)(33)(A)(ii). The Supreme Court held in Castleman, 134 S.Ct. at 1410, that for the purposes of  §922(g)(9), “Congress incorporated the common-law meaning of ‘force’—namely, offensive touching—in [the statute’s] definition of a ‘misdemeanor crime of domestic violence.’”  With that in mind, the Government argued that same meaning should be used for “physical force” in Mr. Morris’ case.

The Sixth Circuit observed, however, that Castleman “directly addressed the propriety of different definitions of ‘physical force’” and the Supreme Court noted that domestic violence statutes are unique in the sense that “the word ‘violent’ or ‘violence’ standing alone ‘connotes a substantial degree of force’ but that is not true of domestic violence which “encompass[es] acts that one might not characterize as ‘violent’ in a nondomestic context.” For that reason, the definition of “physical force” in §4B1.2(a)(1) is not interpreted in the same way as it is for the purpose of defining a “misdemeanor crime of violence” in 18 U.S.C. §922(g)(9).

The government wanted the term “physical force in §4B1.2 to be given “a different definition depending on the prior conviction[.]” If the prior conviction is for domestic violence, then “physical force” should have “the broader common law meaning, which includes ‘offensive touching.’” However, that approach to construing §4B1.2 is “incongruent” with the Sixth Circuit’s consistent determination that the definition of a “crime of violence” in §4B1.2(a)  is applied in the same way as the definition of “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e)(1). Thus, the court concluded that the Michigan statute under which Mr. Morris was convicted was not a “crime of violence” under the “elements clause” of §4B1.2(a)(1).

Turning to whether the Michigan statute is a “crime of violence” under the “residual clause” of the Guidelines (§4B1.2(a)(1)), the Sixth Circuit noted that the statute is not divisible and the categorical approach is used to determine if an offense presents “a serious potential risk of physical injury to another.” The Michigan statute meets that standard because “[i]n the context of a face-to-face incident of domestic violence, there is a serious risk of physical injury” and “domestic violence poses an unusual risk of escalation.” The offense is therefore a “crime of violence” under the “residual clause” of the Guidelines.      


Friday, March 09, 2018

The vagaries of prosecutorial misconduct

Prosecutorial misconduct is a shifting, amorphous concept. The test --- whether the statements were (1) improper, and (2) flagrant --- requires the court to apply not one but two highly subjective terms, both of which are themselves defined by multi-factor tests. Then there is another test for whether improper-but-not-flagrant conduct should result in reversal. All of this is filtered through a natural bias toward upholding convictions, resulting in a legal objection that is difficult to apply and a claim on appeal that seems unlikely to prevail.

Yesterday's unpublished opinion in United States v. Demetrius Joiner is unlikely to change prosecutorial misconduct's reputation as a difficult claim. But it does provide a nice refresher on possible objections that defense counsel can make at trial. Mr. Joiner was convicted of being a felon in possession of a firearm, and his trial defense was that he never actually possessed the weapon. His case was close, resulting in a mistrial followed by a second trial at which he was convicted. He raised four objections to potentially improper statements by the prosecution:

The prosecutor asked Mr. Joiner to comment on the credibility of the government's witnesses. Mr. Joiner testified that he had not stolen the firearm in question, contrary to assertions by the government's police-officer witnesses. The government then asked whether Mr. Joiner was "saying here to the jury that [the officers] lied on that day," and "do you believe that [the officers made this up on you?" These questions were "improper," because it is the jury's job to judge the credibility of testimony, not the witness's. Such questions are only appropriate where a defendant actually testifies that someone else is lying, which did not occur here. Although improper, these questions were not "flagrant," largely because the court considered the whole trial to be "a credibility contest between Joiner and the officers," and thus, presumably, the jury was already primed to consider this question.

The prosecutor improperly vouched for the officers' credibility. In examining the officers, the prosecutor asked whether they had any bias against Joiner or any reason to falsely accuse him of lying." During closing arguments, the prosecutor told the jury that the officers had no motivation to lie. This was not improper. The prosecutor did not state that he "personally found the officers to be credible," nor did he suggest that "he knew facts regarding the officers' credibility that were not revealed to the jury."

The prosecutor made improper statements regarding Mr. Joiner's credibility during his closing argument. The prosecutor told the jury at closing that Mr. Joiner lied and would "lie to you about anything to get out of this situation." These statements were improper. A prosecutor may only tell the jury that a defendant is a liar if the prosecutor references specific evidence or testimony produced at trial, emphasizing discrepancies between the defendant's testimony and the record. Although improper, the statements were not flagrant. Here, the panel suggests that a defendant would have difficulty ever winning such a claim, because the reason it is not flagrant is that there is not much difference between saying someone is a liar and saying that the evidence suggests someone is a liar. Why then consider this improper in the first place?

The prosecutor improperly shifted the burden of proof by implying that Mr. Joiner was obligated to produce a certain witness at trial. On cross examination, the prosecution asked Mr. Joiner where a potentially exculpatory witness was, and noted that the witness was not there to make a certain admission. At closing, the prosecutor asked the jury a similar question. These questions were not improper, because a prosecutor is free to comment on the failure to call a witness so long as the prosecutor does not "suggest that the defendant had the burden of proof or any obligation to produce evidence to prove his innocence."

Faced with two improper-but-not-flagrant actions by the prosecutor, the panel declined to overturn the conviction. But although these objections did not carry the day for Mr. Joiner, they may benefit future defendants.

Monday, February 26, 2018

Aggravated Identity Theft Statute – Don’t Judge the Statute by Its Title

The Sixth Circuit recently studied 18 U.S.C. § 1028A(a)(1) and questioned the meaning of using someone else’s “means of identification.” 
 In United States v. Michael, 17-5626, Philip E. Michael worked as a licensed pharmacist in West Virginia and co-owned pharmacies in West Virginia and Pennsylvania.  The government suspected he used the pharmacies to illegally distribute on-demand prescriptions over the internet. The prescriptions were worth more than $4 million. He was indicted with other defendants, and one of the counts alleged he committed aggravated identity theft by “using the ‘identifying information’ of a doctor and a patient ‘in relation to the [health care fraud] offense.’”  The basis for the charge was that he submitted a claim for payment to an insurance provider indicating that a doctor prescribed a drug to a specific patient.  Included with the claim was the doctor’s National Provider Identifier, and the patient’s name and date of birth.  In reality, the doctor did not treat the patient or prescribe the medication.
Prior to trial, Michael argued that §1028A requires a person to “assume the identity” of someone else, but he acted “under his own name as the dispensing pharmacist.”  The district court agreed and dismissed this particular count and the government appealed.
Michael did not dispute that the doctor’s identifier or the patient’s name and date of birth are a “means of identification.”  He also did not argue that his use of this information was with lawful authority.  The sole issue before the Sixth Circuit was whether he transferred, possessed, used the “means of identification” even though he did not pretend to be the doctor or patient.  
The Sixth Circuit analyzed the many uses of “use” and “uses” and determined that “the question is whether the defendant used the means of identification “during and in relation to” the predicate felony.  The Court found the defendant used the identifying information of the doctor and patient “to fashion a fraudulent submission out of whole cloth, making the misuse of these means of identification “during and in relation to”- indeed integral to – the predicate act of healthcare fraud.”   
Michael argued that the title “Aggravated Identity Theft” for §1028A suggests that ‘uses’ refers only to scenarios that a defendant assumes another’s identity.  However, the Sixth Circuit reasoned that “just as it is dangerous to judge a book by its cover, it is dangerous to judge a statute by its title.”  Finding that the indictment contained the elements of the offense charged, the Court reversed the district court’s decision and remanded for proceedings. 

Wednesday, February 14, 2018

Higdon: A Short Violent-Felony Opinion that Packs a Punch

Appearances can be deceiving. It’s easy to read United States v. Higdon as a case that answers a narrow question: whether a North Carolina offense is a “violent felony” under the Armed Career Criminal Act’s definition. Higdon actually does much more and provides a nice outline about the state of violent-felony jurisprudence after Johnson v. United States, which relieved us of the burden of interpreting the statute’s residual clause. Johnson has not the panacea federal public defenders hoped. Much of the analysis about whether a conviction is for a violent felony has shifted to the use-of-force clause: any felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). And that shift has created some inter- and intra-circuit fault lines.

Let’s get down the brass tacks. Daryl Lynn Higdon pleaded guilty to being a felon in possession of a firearm and was sentenced to the mandatory minimum term of imprisonment of 15 years.  The district court did so because Mr. Higdon had a 1984 conviction for discharging a firearm into an occupied structure in violation of N.C. Gen. Stat. § 14-34.1 (1981). North Carolina courts have identified five elements of this crime: (1) willfully and wantonly discharging (2) a firearm (3) into property (4) while it is occupied, and (5) the defendant had reasonable grounds to believe the property might be occupied.

The government abandoned any claim that the offense involves “attempted” or “threated” use of physical force, and so the only question the Sixth Circuit had to answer was “whether these elements, taken separately or together, require the ‘use . . . of physical force against the person of another.’” The court had little trouble concluding, “[p]lainly they do not[.]” Although the statute requires proof that force was used (discharging a firearm), it does not require that the force be “against the person of another.” No injury must occur.

Now it’s time for the good stuff: why is Higdon important? This case provides direction for the proper analytical approach to help determine whether convictions contain a use-of-force element. The court identified the four requirements of “violent felonies”: “(1) conduct giving rise to force (e.g., pulling a trigger on a gun); (2) certain consequences from that conduct (i.e., the application of “physical force against the person of another”); and two types of mens rea, namely (3) the conduct giving rise to the force be ‘volitional’ rather than accidental, and (4) the defendant be at least reckless as to the consequences of the conduct.” (citations omitted). Higdon clarifies that an offense cannot satisfy these requirements if the defendant had knowledge of the consequences, but did not actually cause them. The court also defined “force against the person of another,” adopting the following definition: the force must be applied to the victim’s person.

Also of note is the fact that Higdon’s author, Judge Kethledge, highlighted his lingering disagreement with Judge Sutton about whether a mens rea of mere recklessness is sufficient to satisfy § 924(e)(2)(B)(i)’s definition. We covered this dispute previously, and this is an issue will continue to divide circuit courts until the Supreme Court intervenes.

One final note: credit where credit is due. Congratulations to Jennifer Coffin of Federal Defender Services of Eastern Tennessee for her hard work on this case.

Friday, February 09, 2018

Sixth Circuit rules that defendant who volunteered to search the internet for information on a missing drug shipment can be held responsible for the shipment’s total weight

In United States v. Pablo Hernandez, the Sixth Circuit demonstrated the low threshold required for holding a defendant responsible for drugs distributed by a conspiracy.  Mr. Hernandez procured an abandoned warehouse to receive large shipments of marijuana from out of state.  In return for this service, the supplier agreed to pay Mr. Hernandez $5,000 per shipment.  After the supplier fell behind on his payments, he offered to give Mr. Hernandez two kilograms of cocaine to satisfy his debt.  These two kilograms were part of a larger 28 kilogram shipment.  However, Mr. Hernandez and his associates were not going to receive this shipment; instead, Mr. Hernandez needed only to pick up his two kilograms from the delivery location.

En route, the shipment went missing.  The supplier told Mr. Hernandez that he was concerned that police had seized the shipment, or that one of the supplier’s employees had stolen it.  Mr. Hernandez “then volunteered to get on the internet and see if he could find out what happened.”  Eventually, one of his associated informed him that the DEA had seized the shipment.

After Mr. Hernandez was arrested, he confessed to both his role in receiving the shipments of marijuana and his involvement with the 28-kilogram shipment.  He then pleaded guilty to the cocaine charges in exchange for the government’s agreement not to prosecute the marijuana offense.

At sentencing, Mr. Hernandez argued that he was responsible for only the two kilograms of cocaine he was set to receive.  More specifically, he argued that the remaining 26 kilograms were outside the scope of his agreement, and thus not relevant conduct.  The district court rejected this argument based on Mr. Hernandez investigating the missing shipment on the internet.  The district court ruled that his actions after the shipment had gone missing had “expanded his role in the conspiracy.”  The court also rejected Mr. Hernadez’s argument that he was a minor participant in the cocaine conspiracy. 

On appeal, the Sixth Circuit affirmed the district court’s rulings.  The court held that Mr. Hernandez’s investigation had expanded his role in the conspiracy, justifying holding him accountable for the full 28 kilograms.

The Sixth Circuit also affirmed the enhancement of Mr. Hernandez’s sentence based on maintaining a drug-premises.  The record showed that Mr. Hernandez had procured the abandoned warehouse for a marijuana shipment at least three times.   The court focused on Mr. Hernandez’s relationship to the abandoned warehouse during the deliveries, noting that he controlled the premises during these times.  Thus, despite the fact that Mr. Hernandez did not control the abandoned warehouse between deliveries, the enhancement applied.

Opinion available here.

Sixth Circuit holds that North Carolina robbery is a crime of violence under the residual clause of the guidelines

In United States v. Smith, the Sixth Circuit returned to its earlier holding that North Carolina robbery qualifies as crime of violence under the sentencing guidelines’ residual clause.  In 2014, the Sixth Circuit had decided this very issue in Mr. Smith’s case, holding that North Carolina robbery was a crime of violence under the residual clause.  However, in light of Johnson, the Supreme Court vacated that decision and remanded the case. 

After the Sixth Circuit ruled that the guidelines’ residual clause was void for vagueness, it remanded Mr. Smith’s case to the district court.  The district court then ruled that the robbery was a crime of violence under both the elements clause and the enumerated offenses clause.  While Mr. Smith’s appeal was pending, the Supreme Court decided Beckles, holding that the guidelines’ residual clause was—in fact—valid. 

Accordingly, when Mr. Smith’s case arrived before the Sixth Circuit again, the court decided to rely on its prior holding.  The court noted case law from the Fourth Circuit holding that North Carolina robbery is not a violent felony under the ACCA’s element clause, as well as a Fourth Circuit opinion holding that North Carolina robbery is a crime of violence under the guidelines’ enumerated offenses clause.  However, instead of analyzing the crime under either of these clauses, the court readopted its prior holding that North Carolina robbery is a crime of violence under the residual clause.  Since the career offender guideline no longer includes the residual clause, the question of whether North Carolina robbery qualifies as a crime of violence under the current guidelines will have to wait for another day.

Opinion available here.

LinkedIn evidence leads Sixth Circuit to remand case for Remmer hearing

In United States v. Talman Harris, social media evidence led the Sixth Circuit to remand a case for a hearing on extraneous influence on a juror.  While on trial for wire fraud, Mr. Harris received a notification that someone viewed his LinkedIn profile.  After the jury found him guilty, Mr. Harris logged in and discovered that a local college student had viewed his profile.  Further research revealed that this student was a juror’s live-in girlfriend.  Mr. Harris had no connection to the student, and his trial had not received publicity.

This evidence suggested that the juror violated the court’s instructions by discussing the trial with his girlfriend.  Additionally, the exclusion of certain evidence made this discovery especially problematic.  A licensing organization had investigated Mr. Harris and revoked his license.  The district court had excluded this evidence from the trial.  However, searching Mr. Harris’s name on Google brought up the investigation as one of the top results.  Mr. Harris’s LinkedIn profile was likewise among the top results.

Based on this evidence, Mr. Harris argued that the student had Googled his name and potentially shared prejudicial information with the juror.  Mr. Harris moved for a Remmer hearing to determine whether the juror had been exposed to the extraneous prejudicial information.  In the alternative, Mr. Harris sought permission to interview the juror and his girlfriend.

The district court denied both requests.  The court concluded that in “‘this age of the internet,’” the most likely scenario was that the juror’s girlfriend learned that he was seated as a juror, visited the court’s website, found the trial in progress, and continued her research by visiting LinkedIn, all without any communications with her boyfriend.

The Sixth Circuit vacated the district court’s judgment and remanded for a Remmer hearing.  The court noted that Mr. Harris had presented a colorable claim of extraneous influence.  Thus, although the district court had discretion in how to investigate the claim, it had abused its discretion by failing to hold an evidentiary hearing or allow Mr. Harris to investigate further. 

Opinion available here.

Thursday, January 25, 2018

Sixth Circuit Remands Sentence in § 924(c) Case in Light of Dean.

In United States v. Henry, the Sixth Circuit reiterated that district courts have more flexibility in considering the mandatory minimums required by § 924(c)(1) in order to depart from the Guidelines for the underlying predicate convictions.  Michael Henry, who had obtained a reversal of his convictions for three counts of bank robbery and three counts of violating 18 U.S.C. § 924(c)(1), was again convicted by a jury on all six counts.   His first § 924(c) conviction came with a mandatory minimum sentence of 60 months, while his second and third convictions carried mandatory minimum sentences of 300 months each.  The Guidelines also recommended a sentencing range of 70 to 87 months for his three predicate bank robbery charges.  The District Court subsequently sentenced him to a whopping 738 months in prison.

On appeal, Mr. Henry challenged the sufficiency of the evidence supporting his convictions and argued that the definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(A) was void for vagueness under Johnson.  Additionally, he appealed his sentence in light of the United States Supreme Court’s 2017 decision in Dean v. United States, which held that sentencing courts are not prohibited from considering the mandatory minimum imposed by § 924(c) when calculating the appropriate sentence for the predicate offense.

Although the Court quickly rejected Mr. Henry’s arguments challenging his conviction, it remanded his case for resentencing in light of Dean.  Thanks to Dean, Mr. Henry will have another chance to address his sentence in light of the § 924(c)(1) mandatory minimums.