Giving teeth to the Speedy Trial Act for competency-evaluation delays

Vindicating the right to a speedy trial is often difficult, likely because courts may be hesitant to impose harsh sanctions for timing issues. Further, one area where delay is particularly likely (and challenging) is when a defendant must undergo a competency evaluation. In the federal system, such an evaluation must happen in-custody at a federal medical center, usually hundreds of miles from the courthouse.

As National Association of Federal Defenders has explained:

[M]andatory detention can lead to significant delays in treatment and competency restoration. Federal Medical Centers lack treatment beds. Although the Bureau of Prisons operates six prison medical centers, only two facilities offer competency restoration programs for men, FMC Butner, North Carolina, and FMC Springfield, Missouri, while a single facility provides such programs for women at FMC Carswell, Texas. In February 2019, the BOP represented that the 7 shortest wait-time for competency restoration placement for men was approximately nine weeks. 

Because the FMCs are often located thousands of miles from the court in which charges are pending, transportation is problematic. In-custody transportation through the United States Marshals can take many weeks, with long bus rides during which defendants are shackled, and overnight stays are often in county jails and other contract facilities ill-equipped to address the needs of our incompetent clients.

This week, however, the Sixth Circuit gave teeth to the statutory requirements of the Speedy Trial Act in United States v. Brown.

Federal authorities accused Carlos Brown of stealing more than $177,000 through credit card fraud. But the prosecution hit a roadblock when, at the parties’ request, the court ordered Brown, who had been on pretrial release, to surrender to an FMC for a competency evaluation. Later that same day, Brown “returned to his residential treatment center and broke down, screaming, crying, and hitting staff members.” The district court, in response, ordered that the U.S. Marshals detain Brown pending the evaluation and ordered that “he must immediately report as soon as a facility is designated and the examination shall be conducted as soon as possible.”

As is all too common, transportation was delayed. The Bureau of Prisons and U.S. Marshals encountered problems interpreting the two orders from the court. This led to a delay that, if the time started running from the day the court first ordered transportation to an FMC, violated the Speedy Trial Act, under which the government only gets 10 days to transport a defendant to a facility for a competency evaluation. 

The government argued, however, that the time did not run from the day of the court’s transportation order because, at that point, the Bureau of Prisons had not yet designated which federal medical center would conduct the evaluation. The government argued the time only started running after the designation, about 30 days after the court’s transportation order.

The Sixth Circuit disagreed, finding that the time ran from the date of the district court’s transportation order. The court then turned to the question of the reasonableness of this delay. Recognizing that this type of delay is presumptively unreasonable under the Speedy Trial Act, the court found that the government did not rebut that presumption. The disruption caused by the bond violation and subsequent detention order did not excuse the delay, nor did the record presented provide sufficient explanation for the delay.

The Sixth Circuit thus found that this delay warranted vacating Brown’s conviction.

But there’s more. The Sixth Circuit also addressed additional delay, after Brown came back from the medical facility, resulting from the district court taking too long to rule on his motion to dismiss based on the delayed transportation. The Speedy Trial Act allows district judges 30 days, from the time a pretrial motion is taken under advisement, to issue a ruling.

Here, the court took 49 days to rule on the motion but attempted to excuse the delay by retroactively finding that the ends of justice excused the delay. The Sixth Circuit decided that the district court abused its discretion in making this ends-of-justice finding. The Sixth Circuit explained that the court’s explanation—its own schedule, counsel’s availability, and other continuances in the case—did not suffice. 

In the end the Sixth Circuit remanded for the district court to decide whether the case should be dismissed with or without prejudice, so it is too soon to know if Brown will get relief. But the decision cements the importance of adherence to the timing rules for criminal trials.

Coram No Deal: Sixth Circuit Denies Petition to Overturn Guilty Plea that Resulted in Denaturalization Proceedings

Must a district court confirm a defendant understands his or her guilty plea could lead to the cancellation of their citizenship? In United States v. Singh, the Sixth Circuit answered "no."

Karnail Singh fraudulently obtained residency in the United States, and, using the same false information, he obtained a United States passport. A federal grand jury subsequently indicted him for using a fraudulent procured passport and for making false statements to immigration officials. 

Pursuant to a written plea agreement, Singh pleaded guilty to the fraudulently procured passport charge in exchange for the Government's agreement to dismiss the false statement count and a lower sentencing range. In his plea agreement, he agreed that while guilty plea would "not necessarily result in immigration consequences" it could affect his removability "in conjunction with possible future criminal charges." During his rearraignment, Singh confirmed he pleaded guilty despite any potential immigration consequences, and the District court informed him his plea could result in the cancellation of his citizenship.

After the Government began proceedings to revoke Singh's citizenship, he petitioned the District Court for a writ of coram nobis, asking it to set aside his conviction. The District Court subsequently denied his petition, and Singh appealed.

According to the Court, Singh's petition suffered from a fatal flaw: the District Court did not commit a fundamental error in accepting his guilty plea. Since immigration consequences are collateral, and not direct, consequences of a guilty plea, the Court concluded Singh knowingly and voluntarily pleaded guilty, whether or not he understood it would lead to the Government denaturalizing him. 

Singh also argued his written plea agreement led him to reasonably believe his guilty plea would only affect his citizenship if he committed another crime, and that the District Court violated Rule 11 by not correcting his misunderstanding. The Court disagreed, noting Rule 11 only required a "generic warning" regarding a guilty plea's immigration consequences. 

The Court next rejected Singh's claim he received ineffective assistance of counsel because his counsel allegedly did not explain the impact his guilty plea would have on his citizenship. Finding that the District Court adequately warned him about the potential immigration consequences posed by his guilty plea, it found Singh had not demonstrated a "reasonably probability" that but for his counsel's error, he would have rejected the plea agreement and either gone to trial or negotiated a different plea agreement. Finding no error, the Court affirmed the District Court's order denying his petition.

The Sixth Circuit Again Reminds Us that Supervised Release Revocation Proceedings are Different.

Those who have participated in supervised release revocation proceedings know they operate under different rules. For example, a district court can conclude criminal conduct occurred under a lesser evidentiary standard than what it would have to otherwise apply. The Sixth Circuit recently reminded us of this in United States v. Jaimez

Timothy Jaimez initially pleaded guilty to conspiring to possess narcotics with the intent to distribute them. After a previous revocation, police arrested him for transporting marijuana with co-felons from his original conviction. An Ohio court subsequently found him guilty of attempting to traffic marijuana, a misdemeanor.

Citing his Ohio conviction, the District Court found Jaimez violated his supervised release by: (1) being charged with a new crime; (2) associating with known felons; and (3) possessing drug paraphernalia. Over his objection, the District Court sentenced him to sixty months' incarceration based on a "Grade A" violation.

The Court first found Jaimez's sentence procedurally reasonable, noting the District Court properly considered the federal sentencing factors, including the seriousness of his offense, promotion of respect for the law, and the provision of just punishment -- factors it was not required to consider pursuant to 18 U.S.C. § 3583(e). Finally, it held the District Court properly sentenced him for a "Grade A" violation, even though an Ohio court only found him guilty of a misdemeanor offense, noting it could have reasonably concluded, under a preponderance of the evidence standard, that Jaimez knowingly transported under a kilogram of marijuana aware it was intended for resale, which is punishable by over a year imprisonment in Ohio.

The Court next rejected Jaimez's argument that his sentence was substantively unreasonable. It held the District Court did not place too much weight on his underlying conduct, noting such conduct demonstrated a "flagrant lack of" deterrence and respect for the law considering the similarity between it and his original offense. 

Jaimez also argued his sentence constituted "double punishment" for his Ohio offense. Not so, the Court said. It noted the longstanding rule that federal and state courts can punish defendants separately. Moreover, it held Jaimez's sentence was not, in fact, punishment for his Ohio conduct. Instead, it noted that revocation sentences are never punishment for the actual release violations; instead, they are punishment for the original offense and for breaching the court's trust.

The Court also rejected Jaimez's challenge to the length of his within-Guidelines sentence. First, noting that "every drug trafficker could have shipped more drugs," it rejected Jaimez's argument that a maximum sentence was not warranted because his underlying conduct could have been worse. It then concluded the District Court gave sufficient weight to Jaimez's "paper-thin" mitigating evidence. Finding it both procedurally and substantively reasonable, the Court affirmed his sentence.

Watch Your Turn: Court Declines to Suppress Evidence Seized as a Result of Officers' Misreading of Turning Statute

On the morning of June 26, 2018, Herbert Marsh and his companions, Hakeem Mannie, and James Horton, robbed a pawn shop in Nashville, Tennessee. At the time, Horton was armed with a black pistol with an extended magazine. The three men ultimately stole eleven firearms and more than $8,000 in cash.

In response, the Nashville Police Department issued a "be on the lookout" report for a grey sedan. The next day, officers encountered Marsh, who was a passenger in a grey BMW sedan he owned. Believing it matched the description in the NPD's report, officers tailed the vehicle, waiting for it to commit a traffic violation. They believed their moment arrived when they witnessed the vehicle turn left into the outside lane of Rosa Parks Boulevard, which has two lanes of traffic traveling in each direction. Believing this violated Tenn. Code Ann. § 55-8-140(2), they stopped Marsh's vehicle.

Upon stopping the vehicle, officers encountered the driver (Horton), Marsh, and two other individuals. They subsequently searched the vehicle and discovered marijuana and five firearms - four they identified as being stolen in the previous day's pawn shop robbery. One of the firearms, a Springfield XD .45 caliber, was the gun Horton brandished during the robbery. 

A federal grand jury subsequently indicted Marsh for seven offenses, including conspiracy to commit Hobbs Act robbery. Marsh moved to suppress the evidence obtained from the search of his car, arguing the traffic stop was unlawful because he did not commit a traffic infraction in making a left turn on a green light. The District Court denied his motion, and Marsh proceeded to trial, where a jury convicted him of six of the seven charged listed in his Indictment.

Prior to his sentencing, Marsh objected to three enhancements in his PSR, which increased his based offense level by 10: (a)  (1) a § 2K2.1(b)(1)(B) enhancement because the offense involved between eight and twenty-four firearms; (2) a § 2K2.1(b)(4)(A) enhancement because the offense involved stolen firearms; and (3) a § 2K2.1(b)(6)(B) enhancement because he used or possessed a firearm in connection with another felony offense. Marsh argued these enhancements impermissibly double counted his conduct and improperly relied on acquitted conduct. The District Court disagreed and sentenced to 210 months' imprisonment.

In a published opinion, the Sixth Circuit affirmed Marsh's sentence and the District Court's order denying his motion to suppress. In challenging the denial of his suppression motion, the parties did not dispute that the officers mistakenly stopped Marsh's vehicle because they misunderstood Tenn. Code Ann. § 55-8-140(2). However, the Court held that the officers' reading of the statute was not objectively unreasonable, and that their decision to stop Marsh was therefore not unlawful.

In challenging his sentence, Marsh asserted the District Court engaged in impermissible double counting by applying a base offense level of 20 pursuant to USSG § 2K2.1(a)(4)(B) because he was a convicted felon and the offense involved a semiautomatic firearm cable of accepting a large capacity magazine in addition to the two-level enhancement pursuant to § 2K2.1(b)(6)(B) for using or possessing "any connection with another felony offense." The Court disagreed, holding that "distinct harms" triggered both enhancements -- USSG § 2K2.1(a)(4)(B) stemming from the firearm's characteristics (a semiautomatic capable of accepting a large capacity magazine) and § 2K2.1(b)(6)(B) stemming the firearm's use in furtherance of another felony offense. 

The Court likewise held that the District Court did not impermissibly double count by applying the three firearms enhancements found in subsections (b)(1)(B), (b)(4)(A), and (b)(6)(B) of § 2K2.1 on top of his already enhanced base offense level. It held that subsection (b)(1)(b) applied because of the quantity of firearms involved, and it found that subsection (b)(4)(A) applied because the offense involved stolen firearms. The enhancements, the Court held, had distinct triggers from each other and from those that would trigger the base offense level set out in subsection (b)(6)(B). Finding no error, the Court affirmed both Marsh's conviction and sentence.

In his concurring opinion, Judge Murphy noted he would also have affirmed the District Court's order overruling Marsh's suppression motion. He would have, however, found that the Good Faith Exception to the Exclusionary Rule applied because, in his opinion, the officers did not recklessly or intentionally misconstrue the statute at issue.

Court Affirms Application of "Reckless Endangerment" Enhancement to Passenger

 In April 2021, Golson and three other individuals were involved in a shooting outside of a business in Elyria, Ohio. After the shooting, the individuals, including Golson, fled the scene and fled from law enforcement in their vehicle at a high rate of speed. Golson was a passenger in this vehicle. 

While pursuing Golson and his cohorts, police purposely disabled the vehicle, causing it to crash. Three of the occupants remained in the vehicle, but Golson fled on foot. Officers subsequently searched the vehicle and discovered four firearms, one of which contained Golson's DNA. Officers arrested Golson, and a federal grand jury indicted him for being a felon in possession of a firearm. 

Law enforcement again arrested Golson two months later in June 2021 after they responded to a new report of shots being fired in Elyria. As a result, a federal grand jury returned a superseding indictment containing an additional felon-in-possession count against Golson. 

Golson entered into a non-binding Rule 11 plea agreement to both counts. In his PSR, the United States Probation Office recommended a two-level enhancement pursuant to USSG § 3C1.2 for "reckless endangerment during flight." In support of its recommendation, the USPO noted Golson drove the vehicle at a high rate of speed and left a firearm therein after he fled the scene. 

Golson objected to the enhancement, arguing he was "running on foot from law enforcement" and that "at no time did he discharge a firearm." During sentencing, Golson, through counsel, argued the enhancement should not apply because there was no "potential risk of serious bodily harm" during his flight. He did not, however, cite to the fact he was only a passenger in the vehicle. The district court overruled his objection and sentenced Golson to 56 months’ imprisonment, three years of supervised release, and a $200 special assessment. 

On appeal, Golson argued the District Court erroneously applied USSG § 3C1.2 because he was not the driver of the vehicle and did not facilitate the chase. The Sixth Circuit disagreed and affirmed his sentence. It first held that Golson did not properly preserve his objection that the enhancement should not apply because he was only a passenger in the vehicle. While it acknowledged Golson raised the issue during his allocution, it held this was insufficient to preserve it for appellate review, noting he should have raised it through his counsel. Since his counsel did not do so, he did not preserve it for appellate review.

Applying plain error review, the Court held the District Court properly applied USSG § 3C1.2 because it reasonably inferred from the undisputed facts contained in his PSR that Golson actively participated in fleeing from law enforcement. It noted the PSR established Golson was an active participant in a crime during "broad daylight" with many witnesses and thus found it was necessary for Golson to flee the scene. It also held it was proper for the District Court to infer he had a reason to flee due to his extensive criminal history. Finally, it held the District Court could infer from Golson's subsequent flight in June 2021 that he had a "pattern and history of flight after dangerous situations." It thus held the District Court did not plainly err in sentencing him.



District court sufficiently explained upward variance of 19 months in vehicular homicide case.

United States v. Axline, --- F.4th --- (6th Cir. 2024) involves a vehicle accident in the Great Smoky Mountains National Park. One passenger in defendant Bryce Axline’s car was killed and another suffered severe permanent injuries. At the time of the crash, Mr. Axline was intoxicated and driving 90 miles an hour which was twice the speed limit. He pleaded guilty to vehicular homicide and vehicular assault in violation of Tennessee law and 18 U.S.C. §§ 7(3) and 13. The plea agreement specified that he “would be ‘subject to a like punishment’ under the penalties specified by Tennessee law.” Slip Opin. 2, n.2.

The guideline range was 37 to 46 months (total offense level 21 and criminal history category I). Mr. Axline was sentenced to 65 months imprisonment and 3 years of supervised release. The Sixth Circuit affirmed that sentence over Mr. Axline’s argument that it was substantively unreasonable because the district court did not provide sufficiently compelling reasons for a 19-month upward variance. The primary factors underlying the Sixth Circuit’s decision were the severity of the offenses and Mr. Axline’s criminal history.

Mr. Axline first argued that the district court gave too much weight to the nature and seriousness of the offenses because the involuntary manslaughter guideline (U.S.S.G. § 2A1.4(a)(2)) already took the seriousness of vehicular homicide into account. The Sixth Circuit, however, concluded that the guideline “does not necessarily contemplate the lethal combination of Axline’s decision to drink underage and his decision to fully accelerate his car at over 90 miles an hour on a winding mountain road.” Slip Opin. 7 (emphasis original). Neither do the guidelines “necessarily adequately account for the effect of [his] actions on multiple victims.” Id. at 8. Thus, the district court did not abuse its discretion by determining that Mr. Axline’s recklessness was outside the heartland of similar cases.

Mr. Axline’s next argument was that the district court overemphasized his criminal history by crediting misdemeanor convictions and other conduct for which no criminal history points were given. He maintained that the prior misdemeanor convictions were not similar to the present offenses and his criminal history score already took into account any repetitive or serious conduct.

The district court expressed concern that Mr. Axline had been arrested or cited four different times between the ages of 18 and 19 for conduct involving drugs and/or alcohol. The court was particularly troubled by Mr. Axline’s conviction for an offense involving the underage use of alcohol only two months before the car crash. Moreover, Mr. Axline admitted daily use of marijuana and regular consumption of alcohol.

The Sixth Circuit acknowledged that “the link” between Mr. Axline’s criminal history and the present offense “is weaker” than cases in which an upward variance was affirmed primarily on the defendant’s “pattern of criminal history.” Slip Opin. 10. Nevertheless, the district court did not abuse its discretion in finding that Mr. Axline’s prior underage substance abuse was sufficiently related to his present conviction, “because the instant offense was likely caused—or, at the very least, exacerbated—by [his] drinking” and he had been charged with an underage alcohol offense two months earlier. Id. Furthermore, criminal history was considered in conjunction with Mr. Axline’s history and characteristics and was only one of the factors underlying the upward variance.  

Lastly, Mr. Axline raised the issue of an unwarranted sentencing disparity and cited Sentencing Commission data to support his argument. The Sixth Circuit rejected the argument and stated that where an upward variance is based on other § 3553(a) factors, a district court “is not required to consider national sentencing statistics, regardless of whether it enters a within-Guidelines sentence or one that falls outside of the Guidelines range.” Slip Opin. 13 (citation omitted).


Waiver or Invited Error? It Could be Both...or Either.

 When does a defendant invite error or forfeit his or her argument on appeal? As the Court held in United States v. Carter, the defendant can sometimes do both - or either. 

A grand jury indicted Kejuan Carter of three counts of distributing methamphetamine. Carter subsequently pleaded guilty to one count pursuant to a written plea agreement. In his sentencing memorandum, Carter made two arguments for a downward variance. He first made a policy argument, asserting the Guidelines' focus on drug quantity and purity improperly punished low-level offenders like him. Second, Carter argued his life experience and characteristics justified a downward variance.

During his sentencing hearing, Carter only made a "passing reference" to his policy argument, instead opting to focus on his life experience and characteristics. The district court likewise did not directly discuss Carter's policy argument and instead focused on his the relevant § 3553(a) factors and focused on Carter’s primary argument, his life experience and characteristics. It subsequently denied Carter's motion for a downward variance and sentenced him to 108 months' imprisonment - the lowest sentence recommended by the Sentencing Guidelines. 

After announcing its sentence, the district court asked: “Pursuant to United States v. Bostic, is counsel satisfied that I’ve addressed on the record all non-frivolous arguments asserted?” Carter's counsel agreed and only raised one objection to his sentence -- one unrelated to his policy argument. Carter subsequently appealed. 

On appeal, Carter argued the Court did not adequately address his policy argument.  The Court, however, held it did not need to reach this question either because he forfeited the argument or invited the alleged error. In reaching this conclusion, the Court focused on the district court's Bostic inquiry. It acknowledged that although the district court's initial Bostic question was "somewhat out of place" because it narrowly addressed a a single issue  -- whether counsel was satisfied it had addressed all non-frivolous arguments -- instead of the more general inquiry, Carter either waived his argument or invited error because his counsel specifically conceded the district court's inquiry. More specifically, the Court held that because Carter specifically agreed that the district court had addressed all non-frivolous arguments asserted, he either waived his right to complain on appeal that the Court had not done so, or he "invited the alleged error by encouraging the court to believe" that it did not need to say any more. 

In his concurring opinion, Judge Gilman asserted the government itself waived any waiver or invited error arguments by not arguing the same on appeal. Nevertheless, it held the district court did not commit plain error in sentencing him -- something the Government actually argued on appeal. 

Officer saying "Let me see it" held to be request, not command

Over a dissent, the Sixth Circuit in United States v. Tellez upheld on clear error review a district court’s finding that a motorist consented to a search of his wallet when an officer told him to “let me see” the wallet.

During a traffic stop, Officer George Camacho asked for, and received, Yanier Tellez’s consent to search his vehicle. The officer then asked Tellez if he had his wallet. In response, Tellez initially appeared to reach for the wallet, and the officer reached for it as well. At the same time, the officer said “let me see it for a moment.” Tellez complied, and the search uncovered evidence of credit-card fraud.

A simple interaction, but a difficult legal question. Did Tellez “voluntarily consent” to a search of his wallet?

The panel decided that it could not reverse the district court’s finding of voluntary consent. It emphasized that Tellez agreed to the search of his vehicle and that the wallet request came right after. The court also pointed out that Tellez reached for the wallet while the officer made the “let me see it” comment, and that Tellez handed it over—actions the court called “telltale signs of a consent-to search.”

The panel cautioned that Officer Camacho’s wording “could, in some contexts, perhaps be viewed as a command”—which would have made the search illegal. But the panel leaned on the standard of review, deciding that it could not find “clear error” in the district court’s finding.

In dissent, Judge Moore highlighted the stark difference between Officer Camacho’s request to search the car and his directive for Tellez to hand over the wallet. And she explained that the court has “consistently held that mere acquiescence to a show of authority, like Camacho’s imperative command here, falls short of our demanding standard for establishing voluntary consent.” She would have found clear error because “Tellez was simply responding to a command issued by Camacho, rather than providing specific, unequivocal, and affirmative consent for Camacho to look through the wallet.”

Judges disagree on denial of rehearing en banc on First Step Act retroactivity language

The Sixth Circuit denied en banc review of its decision in United States v. Carpenter, and the majority of active judges weighed in on the denial. This leaves intact the court’s holding that the First Step Act did not apply to Mr. Carpenter’s resentencing because his first sentence was not vacated until after the Act became law and thus was not “imposed as of such date of enactment” as required by Section § 403. United States v. Carpenter, No. 22-1198, 2023 WL 3200321, at *2 (6th Cir. May 2, 2023). 

Judge Kethledge (who wrote the original Carpenter opinion), joined by Chief Judge Sutton and Judges Thapar and Bush, concurred with the denial. He defended the court's decision in United States v. Jackson, 995 F.3d 522 (6th Cir. 2021), cert. denied, 142 S. Ct. 1234 (2022), which controlled the outcome in Carpenter. He wrote that “the ordinary meaning of § 403(b) is straightforward: it simply asks whether, as of December 21, 2018, a sentence (meaning any sentence) has been imposed on the defendant. Carpenter's sentence had been imposed as of that date, and indeed had not even been vacated yet. Thus—even under the reasoning of the Seventh Circuit opinion from which then-Judge Barrett dissented—the First Step Act does not apply to Carpenter's resentencing.” Carpenter at 4. That aside, Judge Kethledge described Mr. Carpenter’s sentence as “extreme by any measure,” a situation he primarily blamed on Congress’s mandatory minimum sentencing law. Id. at 6.

Judge Griffin, joined by Judges Moore and Stranch, dissented. He explained that Jackson was wrongly decided and wrote that the language in Section § 403 "raises the question of whether “a sentence” refers to a historical fact or one with legal effect—i.e., does it encompass a prior, invalid sentence or does it require an existing, valid one?” Id. at 7. He argued for the latter, presuming that Congress intended the common-law meaning for a vacated sentence: “ab initio, as if it never happened,” and noted that all sister circuits considering this issue have gone the other way.

Finally, in her first authored opinion, Judge Bloomekatz, joined by Judges Moore, Clay, Griffin, Stranch, and Mathis, also dissented, describing the case as one with “all the hallmarks of one that warrants the full court's consideration.” Id. at 12. In her view, Carpenter “clashes” with the prior decision in United States v. Henry, 983 F.3d 214 (6th Cir. 2020) and is “exceptionally important:”

The real human costs that this esoteric legal issue presents also should not be overlooked. Because our circuit has split from every other to reach this issue, defendants in Kentucky, Michigan, Ohio, and Tennessee will often have to serve decades longer sentences than those in most of the other states. Carpenter proves this point. His sentence is eighty years longer than it would be if he had been resentenced in the seventeen states that comprise the Third, Fourth, and Ninth Circuits. . . . The resulting sentencing disparity, along with the other reasons I have outlined, should give us pause enough to consider the decision as a full court. 

Id. at 13. 

The denial of en banc review cements a circuit split on this issue, one the Supreme Court will likely resolve.

No good faith for search of electronic device, even after consent to preview device

Last month, the Sixth Circuit issued an important Fourth Amendment decision regarding searches of electronic devices, United States v. Lewis.

In 2019, Kentucky police opened an investigation after a tip from Homeland Security stated a particular IP address, connected to Edward Lewis, was "viewing child pornography." Two years later, agents knocked on Lewis's door.

At his house, Lewis consented to a search of his phone and laptop after officers asked to look at them. A forensic examiner then previewed the items, revealing suspected child pornography. At the same time, Lewis made incriminating statements about possibly viewing child pornography.

Officers then arrested Lewis, and Detective Anthony Gatson prepared a search warrant for his house and electronic devices. The warrant explained: "An HSI investigation identified Edward L Lewis . . . as a person of interest. HSI SA Minnick requested assistance with interviewing Mr. Lewis. Mr. Lewis was located at his residence at [address.] Mr. Lewis gave consent to search his laptop and cell phone. During [the] search it became apparent that Mr. Lewis had used his laptop to view images of child sexual exploitation."

Subsequent searches confirmed illegal pornography on the devices on the devices, leading to federal charges.

The Sixth Circuit found exclusion of the evidence appropriate. The court decided Lewis consented only to a preview of his devices, not seizure of the devices and full forensic examination. "None of the law-enforcement officers testified that Lewis was asked for his consent to seize his devices or to a perform a second, more invasive search of the devices at a state forensic laboratory, or that he voluntarily consented to those actions." Instead, "Detective Gatson and the other officers reached the limit of Lewis’s consent once they terminated the consent search, arrested Lewis, and left his home to obtain a search warrant." 

This decision thus presents a compelling example of the important distinction between officers looking at a device versus seizure and forensic exam of that device.

As to the search warrant, the district court thought the later search warrant showed officers acted in good faith, but the Sixth Circuit disagreed. First, the affidavit failed to establish probable cause because the detective "provided the state judge only one fact in support of the existence of probable cause: that a search of Mr. Lewis's laptop and cell phone had occurred." The court thus observed, quoting prior decisions, that "the combined boilerplate language and minimal information provide few, if any, particularized facts of an incriminating nature and little more than conclusory statements of affiant’s belief that probable cause existed regarding criminal activity." 

Moreover, no good faith applied because the warrant contained only a "bare-bones affidavit." The court explained that, although the affidavit "clearly expresses Detective Gatson’s belief that Lewis had committed a crime, but it does not provide a factual basis upon which a magistrate could independently reach that conclusion.

The Sixth Circuit thus decided: "Lewis consented to the initial search of his laptop and cell phone performed at his home, and the law-enforcement officers' account of that search and the preview generated during the search were validly obtained and are admissible under the Fourth Amendment. All other evidence taken from Lewis's electronic devices, by contrast, was obtained through searches and seizures that were not supported by a valid warrant or a valid claim to an exception to the warrant requirement. Accordingly, we REVERSE the district court's order denying Lewis’s motion to suppress, VACATE Lewis's conviction, and REMAND for further proceedings."

Taylor Doesn’t Help Those Convicted of § 924(c) Based on Aiding and Abetting a Crime of Violence

Joining every other circuit to decide the question, the Sixth Circuit held in Nicholson v. United States (No. 21-1768) and Sorrell v. United States  (No. 21-1779), that aiding and abetting a "crime of violence" is still a "crime of violence" under the force clause in 18 U.S.C. § 924(c).  

The petitioners in these consolidated 2255 appeals were convicted after a jury trial of (among other things) using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c).  The “crime of violence” element was predicated on the jury finding that the defendants committed either one of two other offenses charged under the Violent Crimes in Aid of Racketeering (VICAR) statute, 18 U.S.C. § 1959—both arising from the assault of a rival gang member but with one being VICAR conspiracy to commit assault and one being VICAR aiding and abetting assault with a dangerous weapon.

Everyone agreed that under existing precedent, VICAR conspiracy to commit a crime of violence is not a crime of violence no matter the predicate offense.  And the Court quickly dispatched the question whether VICAR assault with a deadly weapon is a crime of violence, relying on its rule that any assault, no matter how minimal, satisfies the force clause when committed with a gun. The central issue became whether the § 924(c) conviction remained valid as alternatively predicated on VICAR aiding and abetting that crime of violence. 

Under § 924(c), the force clause requires that the offense have “as an element the use, attempted use, or threatened use of physical force against the person or property of another.”  In United States v. Taylor, 142 S. Ct. 2015 (2022), the Supreme Court held that attempted Hobbs Act robbery is not a crime of violence under § 924(c).  It reasoned that because the attempt crime at issue requires proof only of an intent to commit the crime and a substantial step toward it—which could be just arriving at the planned location with intent and tools—it does not satisfy the force clause.

The petitioners here contended that aiding and abetting as defined in Rosemond v. United States, 572 U.S. 65 (2014), means that the government must prove only two elements: an affirmative act in furtherance of an offense (which could be mere words of encouragement) and the intent to facilitate the offense’s commission.  But the Sixth Circuit was not swayed, focusing on the fact that the government still must prove that someone committed all the elements of the charged crime of violence—unlike for the incomplete attempt offense in Taylor. The Court also relied heavily on the fact that a person convicted of aiding and abetting is treated as a principal.

Finally, the Court in Nicholson rejected the petitioners’ claim that because the jury could have been non-unanimous in its decision about which predicate supported the § 924(c) conviction—the invalid VICAR conspiracy or the valid VICAR aiding-and-abetting—their conviction must be vacated. Following its recent decision in Baugh v. United States, 64 F.4th 779 (2023), the Court held that the invalid conspiracy offense did not encompass conduct beyond the scope of the valid aiding and abetting offense (both arising from the same scheme to assault the rival), so the error was harmless.

Opinion here:

While certainly a blow for post-Taylor aiding and abetting arguments in this Circuit, Nicholson still leaves room for (and provides inferential support for) challenging predicates that do not rise to the level of aiding and abetting, either because they do not require proof of the commission of the completed offense (by anyone) or because they do not treat the defendant the same as a principle or an aider or abettor, but something less.  E.g., United States v. Benton, 639 F.3d 723 (6th Cir. 2011) (holding that Tennessee solicitation to commit aggravated assault is not a violent felony under the ACCA’s force clause because solicitation is “distinguished from” criminal responsibility as an accessory before the fact or as an aider and abettor under Tennessee law).