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.