Monday, January 28, 2019

Why is this case in federal court?

“Why is this case in federal court?” a Detroit federal district judge asked me when I was arguing my a motion to suppress evidence. The question was not germane to the motion, but it was not frivolous either. There are so many federal laws that overlap with state laws, so sometimes it’s worth asking what exactly the federal hook is.

The choice of whether to prosecute someone in federal or state court lies with prosecutors. Nothing prevents both jurisdictions to prosecute someone. (At least for now. The Supreme Court is set to decide whether to overrule the rule that allows subsequent federal and state prosecutions, but this change of course seems unlikely.) Often those charged in federal court often face stiffer penalties.

Assault is an offense that is more often or not prosecuted in state court. But 18 U.S.C. §§ 111(a)(1) and (b) federally criminalize forcibly assaulting, resisting, opposing, impeding, intimidating, or interfering with a person assisting officers and employees of the United States, while that person was engaged in the performance of official duties, and in doing so, using a dangerous weapon. But who are people federal officers and employees? That was the question of United States v. Bedford, one of the Sixth Circuit’s latest criminal cases.

In what appears to have been an extreme case of road rage, Bedford made the unfortunate decision to fire two shots into the truck of a man who worked for P&R Trucking on a day he was carrying mail for the U.S. Postal Service. Fortunately, the driver was shaken, but not injured.

Bedford was prosecuted in federal court. His lawyer asked the question—“Why is this in federal court?”—and filed a motion to dismiss the indictment for lack of jurisdiction.

The outcome turned on the meaning of 18 U.S.C. § 1114, which defines when someone is assisting federal workers. Applying the “plain meaning” of the word “assist,” the Sixth Circuit held that this contract worker qualified as “a person assisting a federal officer or employee in the performance of official duties.” The reasoning was straightforward. The USPS is a federal agency. If an employee of P&R Trucking had not been delivering mail under contract, then a USPS employee would have to do so. And so, the driver was helping USPS achieve its objective. The Court threw in one final reminder: it does not matter whether Bedford knew the truck driver was working for the federal government. All that matters is that his target was assisting federal employees.

The upshot: the federal court had jurisdiction over this case. The downside: Bedford is subject to federal maximums (20 years here) and the federal guidelines, which tend to recommend very long sentences.

Sunday, January 27, 2019

There are worse things [agents and lawyers] could do...

Trials are supposed to be the main event. To ensure judges, lawyers, and litigants remember that fact, appellate rules and legal doctrine makes sure that when a jury says, “guilty,” there’s not much that can be done about it. United States v. Monea provides a number of lessons about the many limitations of appellate work.

An undercover FBI agent targeted Paul Monea under the guise of a big-time drug dealer named “Rizzo”  (not that Rizzo) in need of a way to clean his cash. Monea agreed to sell a 43-carat diamond and some real estate to Rizzo’s “clients,” but didn’t want to deal with cash. Instead, he asked Rizzo to wire him the money. But Rizzo said that he didn’t have enough money on hand to pay a $300,000 deposit, so he wired Monea $100,000 three times. What that meant was that the prosecutor could charge Monea with three counts of money laundering. According to the trustee of the Monea Family Fund, the agent admitted that was his goal, but he said something different at trial.

Unfortunately for Monea, the FBI captured a lot of the dealings on a wire. At some point during the review of discovery, Monea told his attorney that he thought the tapes were altered. The attorney didn’t pay this much mind, but he did talk to an investigator who asked for a hefty fee to investigate the matter. But the attorney and investigator never finalized the deal, so the industrious investigator started listening to the tapes out of curiosity. On the literal eve of trial, the investigator called with some news: he had reason to think the tapes had been altered.

Deep in trial mode, the attorney dismissed the investigator’s call to action because he believed the investigator was not a qualified expert. Undeterred, the investigator found another person who was qualified to testify about the tape’s anomaly. The trouble was that the court had stopped taking evidence and was about to instruct the jury. When the attorney brought the issue to the court’s attention, the plan was to wait for the jury’s verdict and address the issue afterwards.

The judge provided defense counsel with the information of a qualified forensic analyst. For mysterious reasons, counsel did not hire the recommended expert; he hired a music professor and his assistant to review the tapes. The government came to the hearing with a bevy of experts. To the judge’s mind, the music neither defense expert was qualified. So, the post-trial motion went nowhere.
A month later, defense counsel returned with two actually qualified experts and filed a second motion to set aside the verdict. The judge denied Monea a chance to have another evidentiary hearing and rejected his request for an opportunity to examine the recording device.

If you’re reading this and thinking that defense counsel did too little too late, then you have identified the crux of this appeal: ineffective assistance of counsel. Despite the various indications that it found defense counsel’s pretrial investigation lackluster, the Sixth Circuit chose to resolve the claim on the question of prejudice. Monea argued that his attorney’s poor performance deprived him of the outrageous-government-conduct defense because he could not show that the agent threatened him and his family. “This defense is a bit of a leprechaun,” the court wrote, which is probably true because the standard is so high. It only works when the government’s conduct “shocks the conscience,” and very little shocks federal judges.

The evidence Monea brought didn’t do the trick either, in part, because he did not introduce new evidence with his post-conviction motion. Instead, he argued the district judge should have permitted the second round of experts to testify at the hearing. The Sixth Circuit rejected this argument because the district judge said that he thoroughly considered the new affidavits and said that the fact these experts were presented only after trial and an evidentiary hearing made no difference. Whether both assertions are true is hard to know on appeal. The judge’s words were enough for the Sixth Circuit. And so, Monea hadn’t proven that the tapes were altered or that the agent lied on the stand, so he could not show that his attorney’s tardy efforts caused him prejudice.

Monea offers a lot of lessons to federal criminal appellate defense attorneys. The first is about the power of investigators. Agents investigating federal crimes have extraordinary control over charging decisions and sentencing. By coaxing a target to break the law in very specific ways, agents can rack up the number of charges a prosecutor can file. The second is that verdicts are incredibly difficult to undo, so attorneys should investigate their cases before trial, not after. And, third, the defense of “outrageous government conduct” is a bit like “fetch”—it’s not going to happen.

Friday, January 11, 2019

Suppression of evidence is not a remedy for Magistrate Judge errors

In late 2014, The United States briefly got into the child pornography business.  The FBI seized a website on the "dark web" known as Playpen, and, for several weeks, continued to run the website in order to capture users.  Unable to get the information it needed to catch the website's users, the FBI obtained a warrant in the Eastern District of Virginia which allowed the FBI to use software (called NIT) to identify users.  The problem with this is that the warrant captured information well outside the Eastern District of Virginia.

Fast forward to September of 2015 - the use of the NIT software identified defendant Andrew Mooreheard (situated in the Western District of Tennessee) as a user.  Moorehead was eventually charged with possession and receipt of child pornography.  Moorehead filed a motion to suppress the evidence obtained through the NIT search, claiming that because the magistrate judge in the Eastern District of Virginia was outside of their authority to capture conduct in the Western District of Tennessee, the warrant was void.

The Sixth Circuit disagreed. [case here]  The Court found that, although the magistrate judge was clearly outside their jurisdiction, suppression was not warranted under the good faith exception.  First, because Rule 41 was later amended to allow for warrants such as this, there can be no future deterrent factor by suppression of the evidence.  Second, officers clearly could have, in good faith, relied on the warrant.  As such, suppression was not applicable to the evidence illegally seized.

Thursday, January 03, 2019

A qualified en-banc win on Ohio ACCA/career-offender predicates

In today’s Burris decision, the Sixth Circuit issued an en banc opinion finally reassessing whether Ohio’s aggravated-assault and felonious-assault statutes qualify as violent-crime predicates under the “elements clause” of the Armed Career Criminal Act and the Career Offender guideline. The court unanimously held that the statutes did not categorically qualify because they are overly broad and permit conviction based on conduct that did not require violent conduct. However, the court was sharply divided over whether the statutes are divisible, ultimately holding that they are. This determination limits the potential benefits of the decision, and means that Mr. Burris himself will see no relief.

Several prior cases stood in the way of this decision, most notably United States v. Anderson, 695 F.3d 390 (6th Cir. 2012), which held that both statutes qualified under the elements clause. As countless post-Johnson petitioners pointed out, Anderson was decided without the benefit of Johnson, Descamps, Mathis, and many other cases that have dramatically changed the categorical analysis since 2012. The key concern regarding the two Ohio statutes is that both allow for conviction based on “serious physical harm” or “bodily injury” to the victim, but both define those terms to include some form of serious mental harm. Somewhat remarkably, Ohio courts have repeatedly upheld convictions where only serious mental harm occurred. Thus, both statutes sweep more broadly than the elements clause allows.

Unfortunately for Mr. Burris, the majority also held that the statute was divisible under Mathis, and that the divisibility was between the statutes’ “(A)(1)” and “(A)(2)” clauses, the latter of which could only be committed “by means of a deadly weapon.” In the post-Johnson world, the Sixth Circuit has recognized the “deadly weapon rule,” which means that a statute will meet the elements clause when it requires the combination of a deadly weapon and some degree or threat of physical force. Mr. Burris was convicted under the (A)(2) clause, and his conviction thus qualified under the elements clause.

A seven-judge minority (comprising the entirety of what some might label the court’s “liberal” wing) dissented on the divisibility analysis, noting that Ohio courts appeared to have issued clear guidance that the statute is not divisible, and that any lack of clarity should weigh in favor of indivisibility. In any event, the dissent believed that the Ohio felonious-assault statute would fall under the residual clause of the Guidelines.

In short, Burris is likely a big win for federal defendants with prior convictions under the “physical injury” prongs of these statutes, but likely not if they have prior convictions under the “deadly weapon” prongs.

Practitioners should stay tuned though: this case was consolidated for briefing with another case that addressed this same question in the habeas context. We are not betting people here at the Sixth Circuit Blog, but the Sixth Circuit has not been particularly habeas-friendly in the post-Johnson era, so we won’t hold our breath….