Thursday, August 09, 2018

Note change in oral argument times.

At least some oral arguments for the October sitting are being scheduled for 8:30 a.m. instead of 9:00 a.m. Counsel are still instructed to check-in at the clerk's office at 8:00 a.m., but argument is starting half an hour earlier than it used to start.

Tuesday, August 07, 2018

6th Circuit Raines in Potter, a.k.a., Attention Hardcore Habeas Nerds



nerd GIF
https://media.giphy.com/media/m745dTCAxerHa/giphy.gif

Federal criminal practitioners spent over a decade trying to figure out what the heck a “violent felony” was under the Armed Career Criminal Act’s so-called “residual clause.” In 2015, the Court put an end to this misery and held, in Johnson v. United States, that the residual clause is unconstitutionally vague. Johnson and its issue have liberated numerous federal prisoners from lengthy sentences. Johnson has also forced federal courts to wade into the muck that is the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”).

Johnson made it possible for men and women to file motions to vacate and correct their sentences under 28 U.S.C. § 2255, which otherwise requires prisoners to file such motions within 1 year after their conviction (after appeals) becomes final. There are two types of people who file these motions: (1) first-time petitioners, and (2) “second or successive” petitioners. First-time Johnson petitioners had one year to file motions to vacate their sentences because Johnson was a “right . . . initially recognized by the Supreme Court [that] has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. 2255(f)(3). SOS petitioners have an additional hurdle to clear: they must receive a certification from the Court of Appeals, which confirms that the motion “contain[s] . . . a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2).

Damon Raines fell into the first category: he had never filed a § 2255 motion before. Raines is a federal prisoner who was subjected to the ACCA’s 15-year mandatory minimum because he had been convicted of three crimes, which the district court believed were predicate felonies: (1) a 1991 Michigan conviction for assault with intent to do great bodily harm less than murder; (2) a 2002 federal conviction for distributing cocaine base; and (3) a 2002 federal conviction for collecting credit by extortionate means. On his own, Raines filed his first § 2255 motion to vacate his sentence within one year of Johnson, arguing that his third conviction for collecting credit by extortionate means is no longer a violent felony now that the ACCA no longer has a residual clause.
The government raised a number of procedural defenses to the claim, arguing that the court should not even address whether that conviction remains a predicate ACCA felony conviction: forfeiture, procedural default, and timeliness. The Sixth Circuit swiftly rejected each of these attempts to obviate the need to address the merits. Raines adequately preserved his Johnson claim in the district court by citing the case throughout his pro se briefs. He had cause for not challenging his ACCA enhancement on direct appeal because Johnson was a brand new rule announced after his conviction became final, and he suffered prejudice because (as the court later explained), the application of the enhancement was unconstitutional. Finally, Raines’s motion was timely because he filed the motion less than a year after Johnson was decided.

But the greatest hurdle for Raines to clear was the government’s claim that he could not obtain relief because the sentencing judge did not make clear whether his convictions were “violent felonies” under the residual clause or the two other clauses of the ACCA. As the panel noted, the government (and the 10th and 11th Circuits) require first-time petitioners to fulfill “the seemingly improbable task of proving that [their] sentencing judge[s] relied only on the residual clause in sentencing him.” That was the rule of Potter (which we covered here), which held that motions for relief from the judgment must fail unless the 2255 movant can prove that his ACCA sentence was based only on the residual clause. Interestingly, Judges Cole, Gibbons, and Bush expressed disagreement with Potter’s central holding, noting that “[t]his burden . . . presents a tall order when a movant’s sentencing record . . . is silent as to which ACCA clause a district court applied.” What is more, the panel noted, such silence was the norm and made sense before Johnson.

Despite the panel’s disagreement with Potter, it was bound by that decision, and so the three judges had to decide whether Potter precluded Raines from obtaining review of his conviction. And here, the panel reined in Potter’s reach, reading it to apply only when “(1) the movant is bringing a second or successive motion and (2) there is evidence that the movant was sentenced under a clause other than the residual clause, such as the sentencing judge’s averment that the movant was indeed sentenced under another clause.”

Chief Judge Cole went further and wrote separately to explain why Potter’s holding “that a second-or-successive habeas petitioner must show that a sentence was based only on the residual clause” is wrong.

He began by noting that the Supreme Court granted relief to a similarly situated man in Welch v. United States, when it held that Johnson’s holding was retroactive to cases on collateral review. Welch’s case came to the Supreme Court as an appeal from a denial of a certificate of appealability. Habeas petitioners must obtain a COA from a court, which has decided that the petitioner has made a “substantial showing” that he has been denied a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court held that Welch had made such a showing even though the record was not clear as to whether the judge imposed the ACCA enhancement under the residual clause. In fact, the sentencing court had said that Welch’s predicate convictions qualified under the residual clause and the elements clause. Despite this fact, the Supreme Court held that telegraphed that when a petition “pairs a new-rule-of-constitutional-law challenge and an old-rule-of-statutory-law challenge satisfies § 2253(c)’s constitutional right requirement . . ., then such a petition also satisfies § 2255(h).”

In Chief Judge Cole’s view, “[w]hen a petitioner’s sentencing record is unclear as to which clause the petitioner was sentenced under, the petitioner satisfies the ‘new constitutional rule’ requirement” of § 2255(h)(2) “so long as the challenge includes a claim under Johnson.” Under those circumstances “any Johnson error would not be harmless,” because the sentence may have rested on a ground that the Constitution forbids.

For those who bore with me through all of this procedural discussion, I hope to provide a payoff. Once the judges reached the merits of Raines’s claim, they held that his 2002 federal conviction for using extortionate means to collect an extension of credit, 18 U.S.C. §894(a)(1), is not a “violent felony” for ACCA purposes. This is so because it does not have as an element the actual threatened, or attempted use of force because a person can commit the crime by causing harm to a person’s reputation or property.

Raines also provides some clues about the outcome of a battle that is already brewing. In June, the en banc court heard arguments in Williams v. United States (audio here). The court asked the parties to address whether the § 2255 movant has the burden of showing that his sentence was based only on the residual clause and what evidence should be used to decide whether the residual clause was the cause of the 15-year enhancement. Stay tuned.

Friday, August 03, 2018

Reminder to Counsel: Representation Includes Filing Petitions for Certiorari


According to the fine folks at SCOTUSBlog, the U.S. Supreme Court grants certiorari in approximately 80 cases each year. Nearly 8,000 litigants petition the Court for review. And so, the odds that the Supreme Court will grant certiorari in any particular case are extremely poor—somewhere around a 1% chance, according to one estimate. Those chances are even lower if the petitioner must file the petition in forma pauperis, i.e., a motion for permission to file without paying the Court’s filing fee. This can leave counsel appointed under the Criminal Justice Act to represent criminal defendants on appeal feeling like filing a petition for certiorari is a waste of time even when the client wishes to do so.

In an unpublished order, in United States v. Givhan, the Sixth Circuit reminded all CJA appointees that, even though counsel need not file a frivolous petition for certiorari, they must follow a certain protocol before they may withdraw. Counsel must inform the defendant of his or her right to file a petition and file a certification that, after reviewing the records, “there exist no non-frivolous grounds for appeal.” In Givhan’s counsel did not follow this required procedure.

The Sixth Circuit’s reminder raises the question: Why not file a petition for certiorari? If the Supreme Court can change the law, are there any claims that are non-frivolous? Sometimes writing a certification takes as much time to draft as a petition for certiorari. Plus, who knows? Maybe you can be like the defense lawyers who have prevailed against all odds before. The modern Commerce Clause jurisprudence would not be what it is without the efforts of two Federal Public Defenders who happened to catch the Supreme Court’s eye in United States v. Lopez.


shrug GIF
https://media.giphy.com/media/r8WtY1wSWSZTa/giphy.gif

Friday, July 27, 2018

Tennessee Delivery of a Controlled Substance Qualifies as a “Serious Drug Offense” under ACCA


In a recently published opinion, the Sixth Circuit held that delivery of a controlled substance under Tenn. Code. § 39-17-417(a) is a “serious drug offense” under the Armed Career Criminal Act.  The Court rejected the defendant’s argument that the term “deliver” under Tennessee law is broader than term “distribute” under the ACCA.

Under the ACCA, the term “distribute” means to deliver, other than by administering or dispensing, a controlled substance.  Likewise, under Tennessee law, “distribute” means to deliver, other than by administering or dispensing, a controlled substance.  However, Tennessee law prohibits “delivery” while the ACCA includes convictions for “distribution.”

Accordingly, Mr. Goldston argued that delivery is broader than distribution, because the definition for distribution excludes delivery by administering or dispensing.  In other words, delivery necessarily includes delivery by administration or dispensation, while distribution excludes those two types of delivery.

Although the Sixth Circuit acknowledged that “at first glance there might appear to be merit” to this argument, the Court ultimately rejected it.  The Court held that Tennessee did not actually criminalize either administering or dispensing controlled substances, because the definitions of these terms necessarily included only legal deliveries.  Thus, delivery includes only one category of prohibited conduct, which is distribution. 

Opinion available here.

Sunday, July 15, 2018

Court Reverses Fraud Sentences Based on Faulty Loss Calculations


Defendants Zafar Mehmood and Badar Ahmadani ran several companies in Michigan that purported to provide home health services to home bound patients.  The United States, however, alleged they ran a complicated scheme to defraud Medicare.  A jury subsequently convicted both defendants of conspiracy to commit health-care fraud and of engaging a conspiracy to pay and receive kickbacks.  In addition, the jury convicted Mehmood of health-care fraud, conspiracy to commit money laundering, money laundering, and obstruction of justice.  After calculating the amount of loss for each defendant, the District Court sentenced both defendants to below-Guidelines sentences and ordered them to pay approximately $40 million in restitution.

On appeal, both Mehmood and Ahmadani challenged their convictions and sentences.  Although the Court found the District Court committed plain error by not following the procedures outlined in the Court Interpreters Act in finding that Mehmood waived his right to an interpreter during trial, it held the error did not require reversal since he presented no evidence he did not understand the proceedings or that the error otherwise affected the outcome of his trial.  The Court also dispensed with the defendants' remaining arguments against their convictions.

The Court, however, viewed the defendants' sentences differently.  In particular, Mehmood argued the district court erred in calculating his loss based on the full amount of gross billings submitted by his companies between 2006 and 2011—amounting to $47,219,535.47 -- even though he presented evidence that some of his billings were legitimate.   The district court concluded that since Mehmood made fraudulent representations to Medicare, it could consider all of his billings fraudulent and Mehmood could not offset any of the loss amount.  Citing precedent from the Eleventh Circuit and the Guidelines, the Court disagreed and held the district court erred by not first considering whether any of the medical services were legitimate before counting all of his claims as losses.  This error, the Court concluded, was not harmless, because it was a procedural.

The Court similarly reversed Ahmadani's sentence, albeit on different grounds.   On appeal, Ahmadani claimed the district court erred in assessing his total loss at $38,150,113.64 because it included Medicare claims submitted after he was no longer listed as a co-owner of one of Mehmood's companies.  The Court agreed, holding that the district court incorrectly relied upon Sixth Circuit precedent in United States v. Shannon and that it should have relied on USSG § 1B1.3(a)(1)(B) instead of § 1B1.3(a)(2).  Noting the district court failed to make a finding that Mehmood's conduct was reasonably foreseeable to Ahmadani, the Court concluded it committed plain error and remanded the matter for resentencing with an instruction to reconsider his sentence under USSG § 1B1.3(a)(1)(B).

This case is a good example of thorough defense advocacy.  Both defendants faced an uphill battle in challenging their loss calculations (Mehmood would have had to reduce his loss calculation by $15 million to reach the lower range); yet, they persisted in their challenges.  In the end, the process mattered as the Court found that the district court erred in calculating their loss figures.

The opinion is styled United States v. Mehmood, and you can find it here.  










Tuesday, July 10, 2018

Court upholds 2255 waiver provision

Defendant Slusser entered a guilty plea back in 2011.  As part of the plea, he agreed to not file any "motions or pleadings pursuant to 28 U.S.C. section 2255."  Despite this, he filed one in 2012.  It was denied.  In 2016, after Johnson v. United States, 135 S. Ct. 2251 (2015), he filed leave to file a second or successive petition.  The Sixth Circuit granted leave to file a petition, and remanded to the district court.  The district court ultimately denied the motion.

On appeal, the Government pressed the issue that Slusser had waived his right to file a 2255 petition as part of his plea agreement.  The Court determined that, in fact, the waiver provision was enforceable.  The Court further dismissed the claim that Slusser could not have voluntarily waived his right to attack a sentence above the statutory maximum.  The Court dismissed prior case law references by Slusser as dicta, and held "Slusser waived his right to collaterally attack his sentence, including his designation as an armed career criminal. The subsequent developments in this area of the law 'do[] not suddenly make [his] plea involuntary or unknowing or otherwise undo its binding nature.'”

Sunday, July 08, 2018

Those Devilish Details: Forfeiture and Restitution


At sentencing proceedings, the parties usually focus on the amount of time the defendant will spend in prison. In certain cases—like fraud cases—the focus of the proceedings shifts to the amount of money to be forfeited or paid in restitution. Sometimes these calculations are complicated. Very often, the money is never collected. But that does not mean there aren’t things to fight about on appeal!

Daniel Sexton and others managed to convince multiple banks to lend them more than $8.1 million. Once these banks and the government got wind of this scheme, charges and pleas followed. The sentencing judge imposed a sentence of 109 months’ incarceration and ordered Sexton to pay over $2.6 million in restitution and to forfeit property, including a money judgment of over $2.5 million. Although Sexton did not challenge the restitution or forfeiture orders in the district court, he did so on appeal. (He also challenged the calculation of his guidelines and the substantive reasonableness of the sentence, but those holdings are not the subject of this appeal.)

The Sixth Circuit’s published opinion is interesting for two reasons. First, the Sixth Circuit split with the Third and Eleventh Circuits. Second, the judges divided over the question about how to apply plain-error review.

On the first issue, the court grappled with the applicability of the Supreme Court’s interpretation of 21 U.S.C. § 853 issued in Honeycutt v. United States, 137 S. Ct. 1626 (2017). Section 853 provides: “[a]ny person convicted of a violation of this subchapter . . . shall forfeit to the United States . . . (1) any property constituting, or derived from, any proceeds the person obtained directly or indirectly as the result of such violation.” The Supreme Court clarified that the defendant must have actually obtained the property and the property must be tainted, i.e., the product of criminal activity. The italicized phrase was the reason the government must prove the defendant actually obtained the property. It also becomes important later.

18 U.S.C. § 981(a)(1)(C) differs slightly from § 853. It provides, “[a]ny property, real or personal, which constitutes or is derived from proceeds traceable to a violation of section . . . 1334 of this title . . . or a conspiracy to commit such offense” is “subject to forfeiture to the United States.” Missing from this text is the phrase “the person obtained,” which the Sixth Circuit reasoned, means defendants can be liable to forfeit property they did not personally acquire. In other words, as long as the property is connected to the crime, the defendant is liable, even if the property is in the possession of co-defendants. Note that, in this instance, the court addressed whether the district court committed error even though it could have said that any error that may have occurred was not plain.

When the Sixth Circuit turned to the restitution issue, another recent Supreme Court case came into play: Lagos v. United States, 138 S. Ct. 1684 (2018). The Sixth Circuit made clear that Lagos abrogated the holding of United States v. Elson, 577 F.3d 713, 726 (6th Cir. 2009) (remember to Shepardize!). But, in this case, the court rested its decision to affirm the restitution order on the first prong of plain-error analysis. You see, the government never clarified whether money paid by one of the banks was connected to its participation in the investigation or prosecution of the crime. Because of this lack of certainty, the majority said that the district court’s error was not clear or obvious.

Judge Moore disagreed with the majority’s approach to pain-error analysis. She would have vacated the restitution order because courts of appeals must apply the law in effect at the time of the appeal, and the government always has the burden of proof to establish victims are entitled to restitution. In Judge Moore’s view, the fact that the defendant did not object to the restitution amount in the district court did not matter when the record made plain that the government had not satisfied its burden in the first instance.

In the end, the dispute is about $12,554.14 the bank will likely never receive. But Sexton provides an example of how some judges approach plain-error review. It also serves as a reminder to trial counsel: object to those devilish details!

Thursday, July 05, 2018

Intentional Assault by Any Other Name is Still Intentional Assault

Is an intentional assault committed during an extreme emotional disturbance a “violent felony” for the purposes of the Armed Career Criminal Act? In United States v. Maynard, the Sixth Circuit says it is.

Kentucky allows defendants accused of committing first, second, or fourth-degree assaults to mitigate their conduct by presenting evidence that, at the time of the assault, they were “under the influence of extreme emotional disturbance.” Ky. Rev. Stat. § 508.040. In a published opinion, the Sixth Circuit clarified what the court had already said in unpublished opinions: the mitigating factor does not change the fact that the statute has as an element the actual, threatened, or attempted use of physical force. The statute requires proof that the defendant actually caused physical harm, and so the court had no trouble finding that the Ky. Rev. Stat. § 508.040 qualifies as a violent felony under the elements clause of the ACCA.

The overall takeaway of Maynard is this: statutes that permit mitigation arguments do not alter the elements of the offense.

In a very short concurrence, Judge White makes clear that she concurred only because United States v. Anderson, 695 F.3d 390 (6th Cir. 2012), which interpreted Ohio’s felonious assault statute, compelled the conclusion. Sixth Circuit court watchers may be interested to know that the Sixth Circuit had en banc arguments in June to address whether Anderson was correctly decided. See Williams v. United States, 875 F.3d 803, 807–09 (6th Cir. 2017) (Moore, J.) (explaining why Anderson was incorrect). True nerds anxiously await the en banc court's forthcoming opinion.

Monday, July 02, 2018

Procedural error to impose steep sentencing increase based on online article, without notice to parties


The Sixth Circuit on Friday, in United States v. Fleming, condemned a sentencing court's decision to "surprise" the parties by varying upward by five years based on a short Cleveland.com newspaper article published a couple days before sentencing.

Here's what happened:

 Both sides walk into sentencing, expecting a 60-month sentence for a cocaine crime.

 On counsel’s table is a very short (just over 200-word) Cleveland.com article summarizing an Ohio state report about overdose deaths from cocaine mixed with opioids.

 At the start of the hearing, the court says it plans to consider the newspaper article, but doesn’t say how.

 Both sides recommend a 60-month guideline sentence. Neither discusses the article.

 District court varies upward by 5 years, to 120 months, based on the newspaper article.

The Sixth Circuit reverses. 

Notably, the defendant’s crime dealt with cocaine alone, not cocaine mixed with opioids. The defendant also contested on appeal the way the newspaper article summarized the state report.

The Sixth Circuit found that it was procedural error – and “plain error” at that – for the judge to base its upward variance on the article without giving the defendant notice. The newspaper article was littered with potential errors, and the court’s procedure deprived the parties of a meaningful way to challenge it as unreliable.

This district judge has a recent history of being reversed and removed from cases, which led to some discussion at oral argument, and in the opinion, about whether this case should be re-assigned to a different judge. Ultimately, the court concluded that the judge will be able to follow its instructions on remand.

Tuesday, June 26, 2018

Murder conviction overturned because of Fifth Amendment violations


Today in Hendrix v. Palmer, the Sixth Circuit affirmed the grant of habeas relief to a Michigan prisoner, and added another reason he deserves relief.

Joseph Hendrix received a life sentence after losing at trial on charges of carjacking and felony murder. At Hendrix’s trial, Michigan prosecutors introduced statements he made to police after invoking his right to counsel. Specifically, evidence showed that, two days after Hendrix signed an advice-of-rights form requesting an attorney, officers interrogated him—without an attorney. They presented Hendrix with the fact the victim may die, and he offered no alibi, asked if he’d be charged with murder, said he didn’t want to say more because he didn’t want to get into more trouble, and made comments about where he had been before the carjacking.

At trial, prosecutors heavily relied on Hendrix’s suspicious comments and lack of alibi during the second interview. Trial counsel failed to object. In federal habeas proceedings, the State conceded that it was error to admit these statements but argued their admission was harmless.

The district court granted habeas relief on Hendrix’s claims of violations of both the Fifth Amendment (in regard to admission of the statements), and the Sixth Amendment (in regard to his counsel’s failure to object). The court denied all other claims for relief, and both parties appealed.

The Sixth Circuit affirmed the district court, even under AEDPA’s stringent standard. Interestingly, the court emphasized the power of the prosecutor's use of what Hendrix didn’t say during the second interrogation: “His failure to muster a credible alibi when he knew the gravity of his situation enabled the prosecutor to argue persuasively that Hendrix had no alibi because he was guilty.”

What’s more, the Sixth Circuit offered an additional ground for habeas relief. The court concluded that prosecutors erred under Doyle v.Ohio by commenting at all on what Hendrix didn’t say in his interrogations. Doyle bars the use of silence after Miranda warnings. The court emphasized that Doyle does not go “out the window as soon as a defendant makes any post-Miranda statement.” Rather, Doyle “continues to apply to subject matters on which the defendant has remained silent.”

Monday, June 25, 2018

Rare harmless error on Guidelines miscalculation

Recent Supreme Court precedents have suggested that an error in calculating the advisory Guidelines range will rarely be harmless error, even under a plain error standard of review. See MolinaMartinez
v. United States, --- U.S. ---, 136 S. Ct. 1338, 1346 (2016).  The Sixth Circuit found such a rare occasion in United States v. Susany, found here.

In Susany, the district court committed error by not reducing by three levels the base offense level under U.S.S.G. § 2X1.1.  The Court found that the district court should have given the reduction, as although the defendant was involved in a conspiracy to break into jewelry stores, the defendant and his co-conspirators had not yet taken many of the steps necessary in order to actually commit the offense.  "A reduction pursuant to § 2X1.1 may be denied only if all crucial steps for committing the  substantive offense either have already been completed or the co-conspirators would have been capable of the commission of the substantive offense within a negligible intervening time."

But the Court found such error to be harmless - the Court noted "Susany’s case thus falls within a very unusual circumstance—the district court’s error resulted in a lower advisory sentencing range than would have resulted under the correct Guidelines calculation. We are also persuaded that the district court indicated that it provided Susany a downward variance based on the nature and circumstances of the offense, giving him “what [he] asked for; in a different way.” In this rare situation, the error did not cause Susany to receive a more severe sentence than he would have received without the error."

Friday, June 08, 2018


Tennessee third degree burglary is not a violent felony under ACCA;

 
United States v. Caruthers is no longer controlling authority

 
          In Cradler v. United States, the defendant was convicted of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and was sentenced as an armed career criminal (ACCA) to 222 months imprisonment. He contended in a motion to vacate his sentence under 28 U.S.C. §2255 that two of his prior convictions were no longer violent felonies under the ACCA. The Sixth Circuit held that Mr. Cradler’s Tennessee conviction for third degree burglary conviction was not a violent felony under the ACCA.

          The Sixth Circuit first rejected the government’s arguments that the §2255 motion was untimely and was procedurally defaulted. Since those defenses were not raised in the district court they were deemed forfeited when they were raised for the first time on appeal.

          Turning to the merits, the Sixth Circuit noted that courts must use a categorical approach to determine if the burglary was the same type of “burglary” that is enumerated in the ACCA’s definition of a “violent felony.” (18 U.S.C. §924(e)(2)(B)(ii)). The categorical approach is an “elements-only” analysis in which the court compares the elements of Tennessee’s third degree burglary statute to the elements of the generic definition of burglary.

          The Tennessee statute (Tennessee Code Annotated §39-904) is titled “Burglary in third degree – Safe cracking – Penalty.” The Sixth Circuit found that the statute’s first paragraph “contains a set of elements and a penalty scheme that are distinct from the set of elements and penalty scheme in the second paragraph.” Consequently, the statute is “divisible” which allows the court to use a modified approach and review certain documents connected to the case to determine the basis for the offender’s conviction. The indictment here alleged conduct that was contained in the first paragraph of the statute so the next step in the analysis was to compare that set of elements to the generic definition of burglary.

          To determine whether Tennessee’s third degree burglary statute criminalizes more conduct than the generic definition of burglary, the court must determine “the full range of conduct that is encompassed by each statutory element.” The words of the statute alone are not enough to make that determination. Courts must consider case law from the state’s highest court.

          A review of Tennessee case law and a comparison of  the elements of third degree burglary to the generic definition of burglary led the Sixth Circuit to conclude that the first paragraph of Tennessee’s third degree burglary statute criminalizes more conduct than generic burglary. Thus, it does not qualify as the enumerated offense of “burglary” in 18 U.S.C. §924(e)(2)(B)(ii)) and is not a violent felony under the ACCA.

          The Cradler panel recognized that it was previously held in United States v. Caruthers, 458 F.3d 459 (6th Cir. 2006) that the first paragraph of Tennessee’s third degree burglary statute was a violent felony under the ACCA because it qualified as the enumerated offense of “burglary.” However, in light of Mathis v. United States, 136 S.Ct. 2243 (2016), the court in Cradler determined that Caruthers misapplied the modified approach by looking at the facts in the indictment and then comparing them to the elements of generic burglary instead of using the facts to determine which paragraph of Tennessee’s third degree burglary statute was at issue in the case. Therefore, Caruthers is no longer controlling authority in the Sixth Circuit.  

          In a concurring opinion, Judge Kethledge noted that use of the categorical approach was problematic here because the elements of the Tennessee statute seemed to describe only generic burglary but Tennessee case law, which bound the Sixth Circuit, construed the statute to encompass more than generic burglary. So at least in this case, the categorical approach did not lend itself to “accuracy and judicial efficiency.”  

 

           

  

 

Thursday, June 07, 2018


Rejection of C Plea Agreement held to be an abuse of discretion;

Case remanded for resentencing by different judge

 

          In United States v. Cota-Luna, the parties agreed that the defendants (Mr. Cota-Luna and Mr. Navarro-Gaytan) played a small role in a drug conspiracy involving around 92 kilograms of cocaine. Under a Rule 11(c)(1)(C) plea  agreement, the defendants agreed to plead guilty to a conspiracy charge involving that amount of drugs.

          The base offense level was 34 but under the C plea agreement a variety of guideline adjustments were applied including the “Safety Valve” guideline (U.S.S.G §5C1.2). The result was a final offense level of 20 for each defendant. Mr. Cota-Luna would be sentenced to 36 months imprisonment and Mr. Navarro-Gaytan would be sentenced to 33 months imprisonment.

          At the change of plea hearing, the district court rejected the plea agreement. In response to the parties’ question whether the court objected to the guideline calculations, the court indicated that the guidelines were advisory and “just the starting point.” The court noted that “90 plus kilograms of cocaine” were involved and there was “other relevant conduct that’s going to be part and parcel of the case.” The court said, “So the guideline computation may be accurate or may not, but my hands are not going to be tied when I look at all the various factors that I am required to consider.” The court made it clear that it would not accept a C plea agreement.

          The parties then negotiated a Rule 11(c)(1)(B) plea agreement that  contained the same guideline calculations as in the original plea agreement and was “nearly identical” to that agreement. The district court accepted the B plea agreement at a subsequent change of plea hearing.

          With the exception of a single 2 level reduction, “the PSR’s offense-level calculations mirrored those in the plea agreements.” At sentencing, the district court expressed its view that the defendants probably did not satisfy the Safety Valve guideline because §5C1.2(a)(5) required them to discuss the offense at an in-person meeting with government officers and here they relied on their lawyers to convey information to the government. The sentencing was continued to enable the defendants to personally meet with government officers to discuss the offense.     

          The district court entered a presentencing order confirming its view that the defendants did not satisfy the requirements of the Safety Valve guideline because they did not personally meet with government officers before the first sentencing hearing. The order further indicated that the court rejected other adjustments that the parties agreed upon to reduce the base offense level. 

          At the second sentencing hearing, the district court followed the views expressed in its presentencing order. Since the defendants were deemed ineligible for the Safety Valve, their guideline range was 120 months (the mandatory minimum) to 135 months. Each defendant was sentenced to 120 months.

          The Sixth Circuit vacated the convictions and sentences and remanded the case for the district court to reconsider whether to accept the original C plea agreement.

          The majority opinion observed that a district court may defer acceptance of a C plea agreement until it has reviewed the PSR and that is the preferred practice. Here, the plea agreement was rejected before the PSRs were prepared and the district court was required to explain its rejection of the agreement.   

          The opinion noted that the district court had two concerns with the C plea agreement. One concern was that the proposed sentences were too lenient given the amount of drugs involved. The appellate court rejected that reason because the base offense level was predicated on the quantity of drugs. Consequently, that factor should have worked in the defendants’ favor in light of the small role they played in the crime. The defendants’ minor role was also a reason to reject the district court’s second concern - maintaining its sentencing discretion by considering relevant conduct connected to the case. Since the district court’s two concerns with the C plea agreement were not “sound reasons” for rejecting it, it was an abuse of discretion to reject the agreement.

          The majority opinion also ordered that the case be reassigned to a different district court judge. Several factors warranted reassignment. First, by rejecting the C plea agreement before the PSRs were prepared and rejecting “on dubious grounds” nearly every guideline reduction specified in the plea agreement, the court appeared to be predisposed to impose a harsh sentence on the defendants.

          Second, reassignment would “preserve the appearance of justice.” Among the reasons given in support of this factor, the majority opinion referred to the district court’s apparent predisposition to impose a harsh sentence on the defendants and its reliance on “legally erroneous interpretations of the guidelines.”

          Lastly, reassignment would not waste judicial resources because the new judge would only have to review the C plea agreement, the PSRs, “and a few other documents.”

          Judge Kethledge concurred in the judgment. He noted that the parties’ agreement on a particular sentence does not obligate a district court to provide reasons why that sentence is unreasonable. He also pointed out that when a district court rejects a C plea agreement Rule 11(c)(5) does not require an explanation of why the agreement was rejected. Nevertheless, the record must provide the appellate court with an adequate basis to determine if rejection of the plea agreement is an abuse of discretion. 

          Judge Kethledge concluded that the district court’s belief that the defendants were ineligible for safety valve relief was “legally mistaken” and thus rejection of the plea agreement was an abuse of discretion.  

 

Sunday, May 13, 2018

AEDPA’s Rorschach Test


Edward Lang is condemned to die. During his murder trial, the system malfunctioned twice: a member of the victim’s family was on the jury until the second day of trial, and defense counsel did not present or uncover the details of Lang’s terrible childhood. On Friday, the Sixth Circuit issued an opinion addressing whether the Ohio courts that adjudicated Mr. Lang’s appeal reasonably applied U.S. Supreme Court precedent. The panel split. Two judges said that the Ohio courts’ tolerance for these errors was reasonable. Judge Moore dissented.

In many ways, this case is more about the deferential standard of review required by the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254, commonly referred to as “AEDPA” (ED-pah), than the constitutional questions it raises. Bill Clinton signed AEDPA into law after the Oklahoma City bombings. (The Intercept has an interesting story about AEDPA’s legislative history.) In Criminal Law 2.0, former Ninth Circuit Judge Alex Kozinski had this to say about the statute:

Hidden in its interstices was a provision that has pretty much shut out the federal courts from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred. We now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.

AEDPA is a cruel, unjust and unnecessary law that effectively removes federal judges as safeguards against miscarriages of justice. It has resulted and continues to result in much human suffering. It should be repealed.”

Many others agree with that point of view. Because I am a federal public defender, you can probably guess what my view is.

I believe Lang’s case illustrates AEDPA in action and provides an opportunity for you to judge for yourself whether the AEDPA standard of review is good policy.

1.     The Remmer Claim

The judge, prosecutor, and defense counsel did not learn that one of the jurors was related to the victim until they noticed the juror nodding and smiling at the victim’s family members who were in the gallery. On the second day of trial, the victim’s father approached the prosecutor and revealed that the juror was the victim’s niece by marriage. When questioned by the judge, the juror confirmed the relationship, but said that she did not know much about the murder and had not shared with other jurors any information about her relationship to the deceased. The court dismissed the juror and then brought the remaining members of the jury back for questioning. The court told the remaining jurors that the juror “may have had a relative relationship with either a witness or a party or somebody that was involved in the case.” The judge asked the jurors if she had told them about this relationship, and the judge accepted the jurors’ silence as a “no.” The court asked no more questions, and the trial proceeded.

On appeal, Lang argued that the trial court did not adequately investigate or address the impact the biased juror had on the outcome. When faced with a claim of juror bias, Remmer v. United States, 347 U.S. 227, 230 (1954), requires trial judges to “determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.” Petitioners must prove actual bias.

The Ohio Supreme Court rejected Lang’s claim of juror bias, reasoning that the trial court had done enough by asking the biased juror and the other members of the jury whether she had discussed her relationship with the victim. Never mind that defense counsel did not ask to question the remaining jurors individually.

The Sixth Circuit majority said that the Ohio Supreme Court’s decision to sanction this one-question Remmer was not unreasonable or contrary to Supreme Court law. Why? The trial court removed the juror, and she did not participate in deliberations. Both the prosecutor and defense counsel were present when the judge questioned the jurors. And the biased juror’s assurances and remaining jurors’ silence was enough to dispel any concern that the deliberations were unaffected by her presence. Plus, Remmer articulates a generalized standard, and the Ohio courts get a lot of leeway when deciding whether they have complied with the Supreme Court’s generalized standards.

Judge Moore disagreed. She said the trial court’s inquiry “was less than minimal,” and the single question “was overly narrow because it focused only on whether Juror 386 had revealed her relationship to [the victim] to her fellow jurors, and not on whether Juror 386 had tainted the remaining jurors’ ability to be impartial through other biased comments.” She also believed that because “being forced to speak up in front of the rest of the jury panel [has] a depressing effect on [individual jurors’] ability or willingness to be forthcoming.” She argued that the trial judge had to engage in a more searching inquiry to determine whether the juror’s presence and sudden absence impacted juror impartiality. She compared the judge’s conduct to “a doctor trying to determine if a patient had caught an infectious disease from an afflicted acquaintance by asking only if the patient had shared a drink with that person” without “determining whether the two individuals had other interactions through which the disease could be communicated.” In Judge Moore’s view, the Ohio courts unreasonably concluded the Remmer inquiry was so limited.

The majority and Judge Moore disagreed about whether it is reasonable to believe the one-question Remmer hearing adequately addressed the potential for jury bias. What do you think?

2.     The Strickland Claim

Lang presented two reasons to believe his attorney rendered ineffective assistance: (1) the attorney failed to investigate and present mitigation evidence about his horrific childhood; and (2) during closing arguments, counsel described Lang’s childhood as “normal” when it was anything but. To prevail, Lang had to satisfy the Strickland standard: (1) counsel’s performance fell below an objective standard of reasonableness; and (2) that deficient performance prejudiced Lang. Strickland is already a deferential standard that gives defense counsel a lot of leeway to make strategic decisions. And the Supreme Court has said, federal habeas courts must give “double deference” to defense counsel’s decisions.

So, what did Lang’s attorney do during the mitigation phase? He called Lang’s half-sister and mother to testify. Both said that Lang lived with them until he was 10, when Lang’s father abducted him for two years. Lang’s father had been mostly absent from his life because he was incarcerated after setting fire to Lang’s apartment, molesting a girl, and raping Lang’s mother. They neglected to mention: that Lang’s father sexually and physically abused him, that Lang saw his father tie his mother up for days and force her to perform oral sex, that he shot out windows, that he stabbed Lang’s mother in the chest with scissors, and that Lang was in the house when his father set fire to it. These witnesses also did not describe the torture Lang endured when his father abducted him. His father locked Lang in a room for days and beat him with anything in sight. The jury did not learn that Lang started using drugs during that time to numb the pain. Also missing from the mitigation testimony was information about Lang’s older brother, who physically and sexually abused Lang and his sister.

These facts were missing from the record, in part, because Lang’s counsel did not obtain Lang’s foster care records corroborating these details until after the mitigation phase had ended and the jury had recommended a death sentence. The defense psychologist could not write a report with the benefit of all of the records. And Lang’s mitigation specialist met with Lang’s mother for only 25 minutes 10 days before the mitigation phase began. Lang’s attorney had met with her only once before, the day before the mitigation phase began. He chose either to overlook this evidence or never learned it in the first place. And then, during closing argument during the mitigation phase, counsel told the jury that Lang’s childhood before he was abducted was “normal.”

The Ohio courts rejected Lang’s claim of ineffective assistance of counsel, reasoning that counsel conducted sufficient investigation and made a strategic choice not to present evidence of how Lang’s father treated him before abducting him. The Ohio Court of Appeals suggested that strategy played a role because information about Lang’s early childhood would discredit his mother’s testimony because she was also abusive. Finally, the Ohio courts said Lang wasn’t prejudiced by his attorney’s under-preparation because the additional information about his horrific childhood was just cumulative.

The majority of the Sixth Circuit held that these determinations were reasonable, hypothesizing that Lang’s counsel chose not to call a psychologist or introduce records because they showed that Lang was violent, anti-social, and hyper-sexual at a young age. Also lacking, said the majority, was sufficient evidence proving that Lang’s counsel made decisions about the mitigation strategy without adequate information. The court faulted Lang for not offering direct evidence of counsel’s mitigation strategy. Finally, the court said that the Ohio courts reasonably concluded that the additional information about Lang’s early childhood was cumulative, and therefore was unlikely to impact the jury’s decision to impose a death sentence.

Judge Moore was not so impressed by the Ohio courts’ handling of Lang’s IAC claim. Citing the professional standards of the America Bar Association, she argued that trial counsel’s failure to find available documentary evidence and learn more about Lang’s childhood fell below professional standards in death penalty cases. The investigation was so lacking, she explained, that counsel could not have made a reasonable strategic decision not to present the information. She similarly rejected the Ohio courts’ view that presenting this evidence would have undermined the credibility of Lang’s mother and dehumanized Lang. Finally, Judge Moore could not accept the Ohio courts’ conclusion that Lang was not prejudiced by his counsel’s underwhelming performance. She faulted the Ohio courts for suggesting that this mitigation evidence would have to impact every juror, when the Supreme Court has said, when analyzing prejudice, the question is whether there is a reasonable possibility the omitted mitigation evidence would have influenced one juror. In her view, the Ohio court’s prejudice analysis was lacking.

The central disagreement was about whether the Ohio courts reasonably applied the Strickland standard to these facts. Was it reasonable to say that defense counsel made reasonable strategic choices? Was it reasonable to conclude that Lang suffered no prejudice? What do you think?

* * *

There is no doubt that AEDPA’s standard of review drove the outcome in this case. But Judge Moore posed a question that is also worth considering: When a man is condemned to die, does Due Process demand this little? She “do[es] not believe . . . that the protections guaranteed by our Constitution are so minimal.”

How about you?

Tuesday, May 08, 2018

6th Circuit Says a Building is a Building, Not a “Building”


Today, the Sixth Circuit added yet another case to the Federal Reporter that parses the language of a state statute to determine if it describes a “violent felony” under the Armed Career Criminal Act. The court could not hide its exasperation with these sorts of issues, commenting that Jimmy David Malone’s “appeal presents the latest episode in the saga of determining whether a prior conviction is a ‘violent felony.’” Tiresome as the litigation may be, the answers to these questions matter to people like Mr. Malone, whose must serve no fewer than 15 years in prison if the court says their prior conviction is a violent felony.

Kentuckian Jimmy Malone argued that his second-degree burglary was not a violent felony. The Sixth Circuit decided today that Kentucky’s second-degree burglary statute defines a violent felony, while Tennessean Victor Stitt, who also committed a burglary, is free of the 15-year minimum (for now).

The Kentucky second-degree burglary statute starts off simply: “A person is guilty of burglary in the second degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a dwelling.” Ky. Rev. Stat § 511.030(1). But the statute has a few definitions that complicate matters. Section 511.010 expands the meaning of “building” to include “any structure, vehicle or aircraft: (a) where any person lives; or (b) where people assemble for purposes of business, government, education, religion, entertainment or public transportation.” The statute also defines “dwelling” to mean “a building which is usually occupied by a person lodging therein,” and “premises” to mean “the term ‘building’ as defined herein and any real property.”

The question for Sixth Circuit was whether a dwelling means a building where someone lives or a “building” where someone lives, which could include a vehicle or boat. For now, Stitt says that burglaries of vehicles or boats designed for human habitation are non-generic for purposes of the ACCA. But the Sixth Circuit concluded that Kentucky legislators acted intentionally when they referenced a “building” in the definition of the term “premises,” but omitted the quotation marks in the definition of a dwelling. And so, Kentucky’s second-degree burglary statute is generic, and Mr. Malone is an armed career criminal.

Never have quotation marks mattered so much.


Friday, April 27, 2018

Admission of Prior Domestic Violence as Res Gestae Evidence Is Harmless

     In United States v. Brown, the Sixth Circuit considered the district court's admission of 9-1-1 calls in a firearm possession case in which the caller referenced prior domestic violence perpetrated by the defendant. The district court admitted the evidence at trial and reasoned that the evidence was "inextricable intertwined" with the offense conduct. The defendant had been charged under 922(g) with possessing a firearm after he was alleged to have shot a windows in a home where his girlfriend was staying with an aunt. The tape included statements by the girlfriend that the defendant was dangerous. The district court refused to redact portions of the 9-1-1 calls and would only allow them to be played in their entirety.
     The Sixth Circuit has historically permitted background evidence when there is a close connection between the charged offense and the proffered background evidence.In Mr. Brown's case, the Sixth Circuit concluded the district court actually did abuse its discretion in not allowing for a redaction of the tapes. The district court incorrectly "relied on the temporal proximity of the calls themselves, not the temporal proximity of the domestic violence referred to." Because there was nothing "to support that these references are intrinsic to the story being told," they should have been excluded. Particularly noteworthy is the Sixth Circuit's statement that because Mr. Brown was charged with a gun possession crime, references to his violent past or history of domestic violence "was not necessary or integral" to telling the story of what occurred on the day in question.
    However, the Sixth Circuit ultimately held that the error was harmless because the Court was not convinced that the error affected Mr. Brown's substantial rights or contributed to his conviction.

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.