When Does a Stop Stop?

After hearing from a confidential informant that someone was selling heroin at a house in Kentwood, Michigan, two police officers saw Dante Whitley leave the house with a wad of cash. They watched as he briefly went to another house, left, went to a Family Dollar, left, moved a black bag from the passenger seat to the trunk, and went to a liquor store without buying anything.

When Mr. Whitley failed to come to a complete stop before turning from the parking lot to the street, police stopped him for a traffic violation. One officer asked for Mr. Whitley's license, registration, and proof of insurance. When he handed over the documents, the officer saw a scale on his lap. The officer asked him why he had the scale, and Mr. Whitley told him that he smoked marijuana and was on his way to get some.

The officer went back to his car and told the other officer what he had seen. They decided to investigate the scale. Leaving Mr. Whitley's documents behind, they went back to the car and ordered him out. Ultimately, they took him into custody, searched the car, and found marijuana, a gun, and thousands of dollars in cash.

On appeal, Mr. Whitley argued that the officers exceeded the scope of a lawful traffic stop when they returned to the car to investigate the scale. The Sixth Circuit agreed. Relying on Rodriguez v. United States, 575 U.S. 348 (2015), the Court held that the traffic stop "morphed into a drug investigation" at the time when both officers turned their attention to investigating the scale, and neither was performing any task related to investigating the traffic stop (such as checking Mr. Whitley's license).

That may be useful for defendants facing similar circumstances. The Court's opinion makes clear that, after Rodriguez, prior Sixth Circuit decision permitting "de minimis" traffic-stop extensions are "no longer good law." The question instead is whether the officers' actions "prolong[]--i.e., adds time to--the stop." And anything unrelated to the traffic violation, and outside the "down time" waiting for someone else to complete a task related to the traffic violation, may prolong the stop.

But this was no help for Mr. Whitley. The Court concluded that the officers had reasonable suspicion to investigate Mr. Whitley for drug trafficking by the time they abandoned the stop. According to the Court, what they had seen while following him, plus the scale, amounted to reasonable suspicion that Mr. Whitley was engaged in illegal activity. And what Mr. Whitley subsequently said and did gave them probable cause to search the vehicle. Even though the stop stopped, the investigation that continued was lawful.

Chip, Chip, Chipping Away at Havis

At least initially, the Court's opinion in Havis opened a door through which defense counsel could challenge prior convictions the Government argued were controlled substance offenses under the United States Sentencing Guidelines. Holding the "Guidelines' definition of a controlled substance offense does not include attempt crimes," the Court held that Havis's previous conviction for selling and/or delivering cocaine under Tennessee law (Tenn. Code Ann. § 39-17-417) was not a "controlled substance offense." This decision gave defense counsel a useful tool to challenge any prior drug conviction for an offense that might include the attempted commission of the same.

Since Havis, however, the Court has issued a series of decisions partially closing that door. Its decision in United States v. Miller is its latest. In this case, Daniel Miller pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Like Havis, Miller had prior convictions for drug delivery under Tennessee law. Relying upon Havis, the district court agreed that Miller's prior convictions were not controlled substance offenses under the Guidelines, applying a base offense level of fourteen instead of the base offense level of twenty four requested by the Government.

No so, said the Court. It called Havis "unusual" because both Havis and the Government had previously stipulated as to the scope of Tenn. Code Ann. § 39-17-417. The Court held this stipulation was incorrect. Like federal law, Tennessee defines delivery to include "attempted transfer," and it criminalized attempts to violate drug laws through a separate statute.

The Court also rejected Miller's argument that it was bound to the previous construction it provided to Tenn. Code Ann. § 39-17-417. It held it was free to construe the statute differently because its previous construction had not been "fully debated" in Havis due to the parties' erroneous stipulation.

Finally, the Court rejected Miller's claim that Tennessee's definition of "delivery" was ambiguous and that the rule of lenity required a construction in his favor. Not so, said the Court, holding the definition was not so ambiguous as to require the rule's application.

The Court's decision in Miller significantly restricts Havis's reach. While its ultimate holding remains unchanged, the canvas upon which counsel may use it has certainly grown smaller.

Pain-clinic convictions for maintaining a drug premises upheld

A group of nurse practitioners, and a pain-clinic manager, challenged their convictions for "maintaining a drug involved premises" (i.e., a "pill mill") on multiple fronts, including that the underlying statute, 21 U.S.C. § 856(a)(1), is unconstitutionally vague. Today, the Sixth Circuit affirmed on all grounds in United States v. Hofstetter.

The decision leaves for another day the difficult question whether § 856(a)(1) criminalizes the lawful distribution of opioids. Instead, it concludes that, whatever the outer boundaries of the law, the nurses' conduct was criminal. In particular, the court emphasized that a jury instruction required the government to prove that the drug distribution occurred "for the purpose of illegally distributing Schedule II controlled substances."

On a related issue, the court avoided the question whether the trial court could have been required to instruct the jury that, to find the nurses guilty, the nurses needed to have distributed drugs without a legitimate medical purpose and outside the usual course of professional practice. The rub here is that, before submitting instructions to the jury (which did not include the instructions in italics above), the trial court sent its proposed language to the defense attorneys, who did not object. The Sixth Circuit emphasized that improper jury instructions rarely justify reversal if no objection is made, and followed course here.

The court also explained at length why it found the evidence sufficient to sustain the § 856(a)(1) convictions. 

As evidence of knowledge, the court looked to the fact that the clinics didn't accept insurance but charged a flat cash fee, often paid by third parties. Groups of patients often arrived together in a single car from out-of-county. Waiting rooms were frequently standing room only, and patients testified they attended the clinic in obvious states of drug withdrawal. Staff members engaged in kickback schemes with medical companies and accepted bribes, and others quit quickly, they said because they realized the clinics weren't above board. 

And as evidence of a purpose of illegal distribution, the court cited that the clinic manager instructed staff to solicit patients discharged from other clinics for having "track marks" or drug addiction. The court also looked to the sheer volume of opioid prescriptions, and to testimony from another doctor who reviewed a portion of patient files and concluded that none of the opioid prescriptions he reviewed were legitimate.

The court also affirmed evidentiary rulings and rejected a challenge to prosecutor remarks during closing that came very close to commenting improperly on the clinic manager's decision not to testify. Overall, this is an important decision to review for any attorney litigating a "pill-mill" case if the medical professionals working there claim to have operated within the boundaries of acceptable medical practice.

"Ostrich Instruction" Approved

The Sixth Circuit today published United States v. Matthews. The case involved a group of friends, led by former computer-systems salesman Robert Carlson, who started selling drugs for the Sinoloa Cartel.

One of these friends, Katherine Matthews, went to trial and lost. The Sixth Circuit rejected several arguments that she raised on appeal, including to a challenge to the sufficiency of the evidence and variance between the indictment and trial evidence.

The Sixth Circuit doesn't explain why some decisions are published and others aren't, but this one might be published because it again endorsed the "deliberate-indifference jury instruction," sometimes called the "ostrich instruction." In essence, the trial judge told the jury that it find that Matthews knew Carlson was trafficking drugs if she deliberately ignored it. 

The Sixth Circuit repeated its caution that this instruction must be used sparingly because of the danger that the instruction can be offered to prove knowledge of the aims of a conspiracy, but the instruction cannot be used to prove the existence of an agreement to join a conspiracy or intent to join it. It'd hardly be surprising for jurors to slip up when trying to walk such a fine line. 

Indeed, Matthews argued that the distinction between "knowledge of the aims of a conspiracy" and "intent to join a conspiracy" is nonexistent in a single aim conspiracy case. But the Sixth Circuit found that the trial court's instruction adequately explained this distinction consistent with precedent. 

One other interesting issue addressed in the decision: Carlson's ability to plead the Fifth Amendment -- over a Confrontation Clause challenge -- when he took the stand against Matthews. Carlson testified that he "moved" between $500 million and $1 billion for the cartell, and on cross-examination, invoked the Fifth when asked if he paid taxes on that money. The trial court decided that Carlson could invoke the privilege against self-incrimination in regard to fraud- and tax-based testimony, though he could not invoke the privilege to avoid revealing any lienency he received from the IRS as a result of his negotiations with the government. And the Sixth Circuit approved. This decision may be helpful in advising potential witnesses about the scope of their ability to invoke this privilege if testifying.

Another FSA case

In United States v. Bailey, the Sixth Circuit added to its expanding and “less than clear” First Step Act jurisprudence.

In 2008, Mr. Bailey was sentenced to 360 months as a career offender. After the FSA passed, he moved for a sentence reduction based on his rehabilitation, lack of disciplinary history, and the unwarranted sentencing disparities posed by leaving his 360-month career offender sentence intact. The district court denied his motion in a one-page order, dedicating two sentences toward explaining its decision.

The Sixth Circuit found this denial to be procedurally reasonable despite the brevity of the order. It held that the judge appropriately considered Mr. Bailey’s post-conviction conduct and gave several of the 18 U.S.C. § 3553(a) factors “renewed consideration.” In concurrence, Judge Gilman reviewed the “contradictory” state of the law regarding procedural requirements for FCA motions, discerning two principles: that a court’s order will not be deemed insufficient simply based on its length, and that looking anew at FSA cases is especially important because the judge on an FSA motion will often be different than the judge who conducted the initial sentencing.

Perhaps more interesting is the Court’s brief discussion of the substantive reasonableness of the district court’s decision. Mr. Bailey’s utilized Sentencing Commission data and argued that his sentence creates, rather than avoids, unwarranted disparity because it is unlike most of the sentences similar offenders receive today. The Court disagreed, stating plainly that within-guidelines sentences reduce disparities.The concurrence also did not engage with the data, instead emphasizing the point made in United States v. Hymes, 19 F.4th 928, 935 (6th Cir. 2021), that district courts are not required to consider the Commission’s data.



Attenuation and Inevitable Discovery Are Not the Same: A Tale of Two Tests


What happens after police officers discover a weapon during an illegal search of a residence for which they subsequently obtain the resident's consent? Should the district court evaluate the consent's attenuation from the illegal search or whether the police officers would have inevitably discovered the firearm during the subsequent lawful consent search? The Sixth Circuit attempts to answer that question in United States v. Cooper.  

Local law enforcement agencies sought to execute an arrest warrant on Taurus Cooper, whom they believed was a high-ranking gang member who had previously brandished a Glock handgun with a high-capacity magazine in a Facebook photo. They believed he was living with his girlfriend, Angel Walton, so they traveled to her house to execute the warrant. When they arrived, Walton answered the door. Through the opened door, officers saw Cooper sitting on the living room couch. Fearing Cooper might flee, the officers asked Walton about a fictional character and whether he was there. When Walton answered "no," the officers obtained her consent to enter the residence. A team of officers promptly arrested Cooper and conducted a protective sweep of every room of Walton's house. That search led to the discovery of a handgun hidden under a mattress in one of the bedrooms. Realizing their discovery, the officers had Walton initial a consent-to-search form. 

Charged with possessing a firearm as a convicted felon in violation of 8 U.S.C. § 922(g), Cooper moved to suppress the gun seized during the sweep. Although the district court agreed the officers conducted an illegal sweep, it denied Cooper's motion, holding that Walton's consent was voluntary and that the officers would have inevitably discovered the gun during the lawful consent search. Cooper subsequently entered a guilty plea and reserved his right to appeal the district court's suppression ruling.

On appeal, the Government conceded the protective search was unlawful but argued the district court correctly held that the gun was admissible under the inevitable discovery exception to the exclusionary rule. Perhaps, the Sixth Circuit concluded, but the district court utilized the incorrect test. Noting that the attenuation and inevitable discovery doctrines analyze "different aspects of the causal chain," the Court held the district court failed to engage in the proper inevitable discovery analysis because it did not examine the circumstances that existed just before the unlawful protective sweep to determine whether the officers would have still discovered the firearm if the sweep had never occurred. Accordingly, the Court reversed the district court's decision and remanded the matter. On remand, the Court instructed the district court to find that the inevitable discovery doctrine applied only if it found: (a) the officers would have still sought Walton's consent to search even if the illegal protective sweep had never happened; (b) Walton would have given her consent in that hypothetical world; and (c) the consent search would have led officers to discover the gun.

This author is interested in what type of evidence the district court will consider in conducting this analysis on remand. It is possible Cooper's victory will prove short-lived.


Ineffective Assistance of Client

Abraham Lincoln supposedly said something like: “A man who represents himself has a fool for a client.” Michael Lee Johnson--like Gomez Addams before him--said, “I am that fool!” He paid a very steep price for that choice: after a jury trial, he was convicted and sentenced to an astonishing 864 months’ imprisonment.

Now represented by the University of Michigan’s Federal Appellate Clinic on appeal, Johnson racked up a series of victories, including a new trial and reassignment to a different district judge. His case highlights the pitfalls of self-representation.

Johnson was charged with a bevy of crimes after he got into an argument with his girlfriend, including assault, unlawful imprisonment, domestic violence, and witness tampering. Although these are typically crimes prosecuted in state courts, Johnson was charged in federal court because his girlfriend was a member of the Chippewa tribe, and the apartment where most of the events took place was on the Isabella Reservation.

From the outset, Johnson struggled to trust his two court-appointed lawyers. He ultimately asked the court to represent himself.

At the final pretrial conference, the district court asked Johnson how he wished to handle his defense. Johnson declared that he would do a better job than his counsel. He announced that he had read Michigan court rules, federal statutes, and the Federal Rules of Evidence. The district court asked, “[W]hy do you think that without a legal education you are in a better position to make . . . the decision that you are a better lawyer than either [court appointed lawyer]? I mean, doesn’t that strike you as a little bit out there?” Undeterred, Johnson replied, “I don’t say that I’m a better lawyer. I’m sure these men have a lot more experience in a trial. It would be a David and Goliath, but I’m willing to take that opportunity. I’m willing to put my life on the line…” The district court admonished Johnson that self-representation is not advisable, even if it is constitutionally protected. Undeterred, Johnson decided to press ahead as his own lawyer. The district court appointed a third lawyer to act as standby counsel.

On appeal, Johnson argued that the district court failed to ask the questions necessary to determine that a person wishing to represent himself understands the potential perils of doing so. The Sixth Amendment guarantees the right to counsel and also the right to self-representation. To avoid unknowing waivers of the right to counsel, the Sixth Circuit requires district courts to ask people asking to proceed pro se a series of questions in the Bench Book for The United States District Judges, or at least something close to it. Before answering that question, the Sixth Circuit clarified that the standard of review for whether waiver of counsel is valid is de novo even if the pro se litigant does not object to the colloquy. This critical and long-unresolved question can be outcome-determinative, as it was for Johnson. Reviewing the validity of the waiver de novo makes sense because we cannot expect people to know whether and when to object while a judge is asking questions about the decision to represent themselves.

When the district court talked to Johnson about the decision to represent himself, it did not fully address the gravity of the charges and potential consequences. In fact, the judge did quite the opposite, suggesting that this was not the type of case where the potential penalties were 50–70 years. In fact, it was; Johnson was sentenced to 72 years in prison. Because the colloquy fell short of what is required, the Sixth Circuit reversed Johnson’s convictions and remanded for a new trial.

The majority was also unconvinced that Johnson effectively waived his right to counsel by behaving badly at trial. After all, it did not order Johnson to proceed as his own lawyer in response to any misconduct. The majority was also not persuaded, as Judge Siler was in dissent, that Johnson’s request to remove two attorneys an effective waiver because he was amenable to the assistance of standby counsel.

On his own, Johnson’s defense struggled from the outset. During voir dire of potential jurors, Johnson mentioned that he planned to call “a slew of witnesses.” After opening statements, however, it came to light that none of the witnesses had been subpoenaed and the court denied having received any witness list. Johnson believed his standby counsel would do that. He further explained that he had given witness lists to all three appointed attorneys and sent one to the district court. After realizing that he would not have any witnesses to testify on his behalf, Johnson asked for a continuance so that he could subpoena the witnesses. The district court refused.

The Sixth Circuit concluded that the district court’s failure to grant a continuance or to allow time to subpoena witnesses violated the Sixth Amendment’s right to compulsory process. The majority was troubled by the district judge’s failure to review the letters Johnson sent to determine whether he had, in fact, submitted a witness list. The majority also concluded that the district court should have directed standby counsel to file subpoenas and witnesses on Johnson’s behalf after he displayed obvious confusion about the process at the pretrial conference. Although Judge Siler acknowledged the confusion, he believed reversal was improper because Johnson had not made an offer of proof about what the witnesses would say if called to testify.

Without time to subpoena witnesses, Johnson was the one and only witness for the defense. What happened during that testimony illustrates one of the many perils of testifying at trial.

The government provided notice under Federal Rule of Evidence 404(b) of intent to call two of Johnson’s ex-girlfriends to testify about previous assaults. Before trial, the judge ruled that the testimony was admissible to show lack of accident only if Johnson admitted to committing the assaults against his girlfriend and denied intent to imprison or strangle her. Likely unaware that he could open the door to this testimony, Johnson stated on the stand that he had never restrained a woman. The government proceeded to call his ex-girlfriends who testified that he had strangled and barricaded them before. Because this testimony was now offered to discredit Johnson, the district court’s ultimate decision to allow this testimony was not an abuse of discretion.

After the jury found Johnson guilty, he faced the next challenge as a pro se litigant: sentencing. Johnson’s final Guidelines range was an astonishing 360–2,412 months (30–201 years) b based on an offense level of 38 and a criminal history category of VI.

Because Michigan law provided the substantive basis for the charges, the district court had to figure out the most analogous Guideline to use. The district court chose to apply U.S.S.G. § 2A1.6, which is the guideline applicable for federal kidnapping, abduction, and unlawful restraint. Without an objection, Johnson was stuck with plain-error review when he argued on appeal that Mich. Comp. Laws § 750.349b was punished less severely than kidnapping under federal law. The Sixth Circuit found no plain error because the Michigan statute was also a felony and punishable up to 15 years.

The Sixth Circuit also did not find that the district court impermissibly double counted by failing to group the eight witness-tampering counts. The problem for Johnson is that each witness-tampering count was treated as separate attempts to tamper with a witness.

At the sentencing hearing, the government sought a 100-year sentence. The victim asked that the court impose a life sentence.

For his part, Johnson maintained his innocence and asserted that various violations had occurred during the trial, but he did not make as sentence recommendation. His counsel suggested that mental health treatment was appropriate and emphasized the possibility of rehabilitation and redemption.

 Before imposing the 864-month (72-year) sentence, the district judge made only two comments. First, he said Johnson appeared to be incapable of discerning what is in his best interest. Second, the district judge commented that he could “not discern any sense of moral guardrails concerning [Johnson’s] behavior.”

On appeal, the majority found the district judge’s explanation of the sentence lacking. In other words, the sentence was procedurally unreasonable. In particular, the majority was troubled by the judge’s failure to consider rehabilitation and the potential benefit of mental health treatment. The fact that the sentence included a mental-health-treatment condition of supervised release was not enough to assure the majority that the judge adequately considered the rehabilitative purpose of a sentence because 72 years is effectively a life sentence.

The Sixth Circuit believed the original trial judge would have a hard time forgetting Johnson’s antics during the first trial, and thus ordered that the case be reassigned to a different judge.

Johnson was correct that his trial would be like David versus Goliath. Most federal criminal cases are. But on appeal, with the assistance of appellate counsel, Johnson landed three fatal blows. He now gets a new trial in front of a different judge. Maybe this time, he’ll have more effective counsel.



The Court continues its in-house disagreement on the use of changes in the law as a basis for compassionate release.  In today's United States v. McCall,  a divided panel of the Court holds " a court may consider a nonretroactive change in the law as one of several factors forming extraordinary and compelling circumstances qualifying for sentence reduction under 18 U.S.C. § 3582(c)(1)(A)."  In doing so, the panel determined that while prior precedent held that a change in the law may not be the sole basis for compassionate release, it could, along with other factors, qualify as a proper basis for a reduction in sentence.  The panel further determined that cases holding otherwise improperly ignored the Court's ruling in United States v. Owens, 996 F.3d 755 (6th Cir. 2021), and thus were not binding.  In his dissent, Judge Kethledge noted that "for the district courts in this circuit, our decision in this case renders the law on the issue presented unknowable."  

It would seem this case tees up the matter for en banc review.  Stay tuned!!

Plea Agreements: Know What You're Getting and What You're Giving Up

Bryan Presley pleaded guilty to conspiring to burglarize pharmacies with the intent to steal controlled substances and assaulting a police officer with his car when he sped away from a burglary scene. Three parts of his plea agreement lead to some tricky questions.

The agreement provisions:

  1. The parties stipulated that three specific offense characteristics applied to the conspiracy count.
  2. Under Rule 11(c)(1)(C), the parties agreed that the Court "may not modify" the three stipulations and "[i]f the Court rejects these stipulations either party may withdraw from the agreement."
  3. Presley waived his right to appeal unless the sentence "is an upward departure from the guideline range that the court establishes at sentencing."
Some questions:
  1. If the court accepted the plea agreement, what did the parties' agreement bind the court to do under Rule 11(c)(1)(C)?
  2. Would Presley have the right to withdraw from the agreement if the court imposed additional specific offense characteristics? What about if the court imposed Chapter Three enhancements?
  3. If Presley did not withdraw from the agreement, would he have the right to appeal if the court sentenced him within a higher guideline range based on additional specific offense characteristics? What about a higher guideline range based on Chapter Three enhancements?
We get answers to only some of these questions in United States v. Presley. At sentencing, the district court adopted additional specific offense characteristics and Chapter Three enhancements and sentenced Presley within the higher guidelines range. Presley didn't move to withdraw or object to the additional enhancements.

On appeal, the court gave a clear answer to the third question: Presley's appeal-waiver applied. Even with the additional specific offense characteristics and Chapter Three enhancements, his sentence was within "the guidelines range that the court establishe[d] at sentencing," so Presley waived his right to appeal "[u]nder the agreement's plain terms."

Seeking to avoid the appeal waiver, Presley argued that he did not knowingly and voluntarily waive his right to appeal because, as he understood it, his plea agreement limited the district court to a lower guidelines range. But Presley didn't raised that objection in the district court, so the court reviewed only for plain error.

On plain-error review, the panel majority concluded that Presley could not show "that it should have been obvious that he understood his plea agreement to forbid the district court from applying additional enhancements." Among other things, the majority noted that the agreement said nothing about additional enhancements beyond the stipulated ones, that Presley himself argued for a total offense level higher than the level based on the stipulations alone, and that he never moved to withdraw his plea. Thus, the majority concluded that the agreement did not "preclude[] further enhancements--at least not plainly so."

Concurring in the judgment, Judge Moore took a different approach. She agreed that the court reviewed only for plain error. But she focused on Rule 11(c)(1)(C): "In essence, Presley's contention is that once the district court accepted the plea agreement, it was bound to apply only the stipulated base offense level and specific offense characteristics; therefore, by adding additional enhancements the district court modified, and thus breached, the plea agreement."

Judge Moore concluded that the agreement said nothing about Chapter Three enhancements, and the district court thus did not plainly err on that point.

Regarding the additional specific offense characteristics, though, Judge Moore found the issue "a much closer question." She reasoned that, although the plea agreement didn't specifically state that no other specific offense characteristics applied, at least one court had held that a similar plea-agreement provision "solidified where [the defendant] will start in Chapter Two of the guidelines," and "[o]rdinarily, we would construe such an ambiguity in favor of the defendant." But on plain-error review, ambiguity wasn't enough to win the day.

So, what did Presley give up in his plea agreement? He gave up the ability to challenge the stipulated offense characteristics. And he gave up his right to appeal any within-guidelines sentence, whatever that guidelines range might be.

And what did Presley get out of the agreement? Perhaps nothing. He gained the right to withdraw if the district court didn't accept the parties' stipulations. But based on the panel majority's reasoning, that might have been no benefit--after all, the agreement said nothing about additional enhancements beyond the stipulated ones.

Howell Did We Get Here?

         Only 2% of federal criminal cases are resolved by trial. As a result, there are few appellate opinions about the rules of evidence or issues that arise at trial.

Gene Howell is one of the few people charged in federal court who took his case to trial. He was charged and convicted of armed bank robbery, brandishing a firearm during a bank robbery, attempted armed robbery, discharging a firearm during the attempted armed robbery, and being a felon in possession of a firearm. The appeal that followed resulted in the rare opinion that provides some guidance about how the Rules of Evidence and the Rules of Criminal Procedure operate, as well as a reminder about why there are so few appeals from trials.

Before trial, Howell’s attorney moved in limine to prevent the prosecutor from introducing evidence of his prior convictions. He also asked the court to hold separate trials for the armed robbery and for the felon-in-possession charge because, to prove that charge, the government must introduce evidence of a prior felony conviction. Typically, in felon-in-possession cases, defendants stipulate to the fact of a prior felony conviction to prevent jurors from learning about the type of conviction.

It’s easy to understand why a person accused of a crime would not want the jury to know about his prior convictions. We try to prevent jurors from thinking “once a criminal, always a criminal” or wishing to punish the person for the prior crime. Although the law presume jurors are capable of considering convictions for a limited purpose, jurors are just people, after all. Few people are actually capable of ignoring the elephant in the room.

The Rules of Evidence are written to prevent this type of prejudice to the accused. Typically, evidence of prior convictions is not admissible. If a defendant testifies at trial, Rule 609 permits the prosecution to introduce prior convictions for the sole purpose of impeaching the defendant’s character for truthfulness. Rule 404 prohibits the use of prior bad acts to prove the defendant’s bad character “in order to show that on a particular occasion the person acted in accordance with the character.”

Understandably, a defendant would want to know before taking the stand if his history will be on display for the jury. But Howell had no way to prevent the jury from hearing about his past. The judge denied the motion for separate trials.  

Howell also did not get the benefit of any clear answer from the judge about how many or which of his prior convictions the jury would know about. Rather than rule on the motion to exclude the prior convictions, the judge reserved ruling to see how the trial progressed. In the end, Howell chose not to take a chance that the jury would hear about his prior convictions and opted not to testify. As a result, the jury heard that Howell had been convicted of a felony before but did not get the benefit of his side of the story.

On appeal, Howell challenged the judge’s decision not to bifurcate the trial or to issue a clear ruling about the admissibly of his prior convictions. But the Sixth Circuit found no problem with how these decisions affected Howell’s trial. In fact, it held that Howell could not challenge the trial court’s decision not to offer a clear ruling because he did not testify, reasoning that they would have to know what he would have said to determine if the introduction of his prior convictions was harmful. Even a summary of Howell’s proposed testimony would not suffice to permit him to challenge the non-existent evidentiary ruling. The result is an odd circumstance where Howell could not make an informed decision about whether to testify, but he also cannot challenge the bind he was in without risking self-incrimination.

The court also found no error in the trial court’s decision to combine armed robbery and felon-in-possession charges in one trial. Federal Rule of Criminal Procedure 8(a) allows the prosecution to try multiple charges together if the offenses are (1) “of the same or similar character”; (2) “based on the same act or transaction”; or (3) “connected with or constitute parts of a common scheme or plan.” Because Howell necessarily was a felon in possession of a firearm when he brandished and discharged the firearm during the robbery, there wasn’t a problem with the joinder of offenses.

Nevertheless, charges should not be tried together if having the jury hear evidence of the charges would prejudice the defendant. This is where the law does not mirror reality. As long as the judge tells the jury not to consider the defendant’s prior felony conviction for any other purpose other than to determine if he was a felon when he possessed the firearm, the law presumes no prejudice. And the same was true for Howell.

In addition, before trial, Howell challenged the introduction of one of the bank teller’s testimony that she believed he was the robber. Immediately after the robbery, the teller told police that she could not identify the robber and that she only knew the robber was a man. A few months later, however, the teller saw Howell on the evening news after his arrest for the attempted robbery of a different bank. When the teller saw Howell’s photo on the evening news, she concluded that he was the same person based on what sounded like a modus operendi to her.

The trial judge allowed the teller to explain to the jury why she believed Howell was the robber, and Howell challenged that ruling on appeal. Rule 701(a) requires opinion testimony be “rationally based on the witness’s perception” and assist the jury understand something they otherwise would not be able to figure out. The Sixth Circuit held that the teller’s opinion testimony was impermissible because she offered no description of the robber before she saw Howell on the news. In addition, her opinion was minimally useful to the jurors who could figure out on their own whether Howell committed both robberies.

Although Howell successfully identified an error at his trial, he did not get a new trial. The Sixth Circuit held that the evidence of his guilt was so overwhelming that the teller’s opinion testimony was “harmless.” His accomplice testified against him, and, according to the court, the instruction to the jury about the dangers of identification when there is limited time to observe were enough to fix the harm caused.

This opinion provides a helpful practice tip for trial lawyers. If you file a motion in limine to exclude certain evidence, there is no need to object when the prosecution introduces the evidence at the trial so long as the trial judge issued a clear, definitive ruling.

Theoretically, Due Process protects against being punished for exercising a constitutional right. But it happens all the time. When Howell decided he wanted a trial, the prosecutor added a felon-in-possession charge. On appeal, Howell argued that the addition of the charge was vindictive. But the Supreme Court has said that the addition of charges or increase in punishment is not presumptively vindictive unless the defendant shows that the prosecutor has a stake in chilling the exercise of a right and that the conduct was unreasonable.

Even though the prosecutor waited 15 months to add the charge, the Sixth Circuit concluded that the prosecutor didn’t have any personal stake in pressuring the defendant not to have a trial.

Once again, the law and reality part ways. The Supreme Court has justified the system of pleas that has become the criminal legal system by exhausting the benefits of “efficient justice.” And Professor Carissa Byrne Hessick recently published a book reexamining whether this system of pleas is the type of system we want. But it is difficult to understand how courts can believe prosecutors who work hard to deter trials don’t have a stake in lighter caseloads and fewer nights preparing for trials.

The Sixth Circuit also found the prosecutor had a good reason to add a charge late in the game. Fifteen months after the grand jury issued the indictment, the prosecutor received the ballistics report, which the Sixth Circuit said helped confirm an element of the offense: that the firearm had crossed state lines or affected interstate commerce. That reasoning is hard to accept at face value given that there are few if any guns manufactured entirely within one state. And even if, in Howell’s case, every part of the gun were manufactured in Tennessee, it’s not clear the government would have difficulty showing an effect on interstate commerce. The Supreme Court concluded that home-grown marijuana affected the market for cannabis.

Howell is now serving a 466-month sentence—close to 39 years. His sentence surely would have been lower had he pleaded guilty. His case is illustrates the many ways the law has developed to encourage guilty pleas. It’s easy to see why only 2% of people charged in federal court take that risk.

Too Compassionate Release: Court Reverses Grant of Compassionate Release to Defendant Sentenced to Life Imprisonment

From 1989 until 1997, John Bass led a drug trafficking organization that distributed multiple kilograms of crack cocaine in Michigan and Ohio. In addition to drug trafficking, Bass also engaged in several violent crimes, including the murder of his half-brother in order to inherit his drug trafficking operation. A the jury convicted him of the drug trafficking charge and one count of murdering another person in the course of committing a drug trafficking crime. Bass's murder conviction made him eligible for the death penalty, but the jury ultimately sentenced him to life imprisonment without the possibility of release.

On June 28, 2020, Bass moved for compassionate release due to the COVID-19 pandemic. Citing his ethnicity (African-American) and his morbid obesity, Bass claimed he was at greater risk of contracting COVID-19 and experiencing severe symptoms. In a supplemental filing, Bass also cited data showing that 20% of the inmate population at his facility (FCI McKean) had been diagnosed with COVID-19. Finally, he cited the United States Bureau of Prisons' Male Prisoner Assessment Tool Targeting Estimate Risk and Need ("Pattern") Risk Scoring Sheet, which he indicated he was a low-risk offender and less likely to reoffend upon his release.

On January 22, 2021, the District Court granted Bass's motion. Noting he possessed several COVID-19 comorbidities and that there was a high rate of infection at FCI McKean, the District Court held that Bass had shown "extraordinary and compelling" reasons for a sentence reduction. The Government subsequently petitioned the Sixth Circuit for an emergency order staying the District Court's order, which the Court granted.

With the stay in place, the Court examined the merits of the Government's appeal. In a published opinion, the Court reversed and remanded the District Court's order, noting it abused its discretion by misapplying the legal standard in 18 U.S.C. § 3553(a)(6) by focusing on sentencing discrepancies between Bass and his codefendants instead of national disparities between defendants with similar criminal histories convicted of similar conduct. 

The Court also faulted the District Court for comparing itself to a parole board in analyzing Bass's motion for compassionate release. In its opinion, the District Court's decision to compare the compassionate release proceedings to parole hearings "infected" the release proceedings with error. Unlike a parole hearing, the Court opined, the inmate's rehabilitation, by itself, did not present an "extraordinary or compelling" reason to grant compassionate release. 

The Court also held that the District Court abused its discretion by giving disproportionate weight to the 18 U.S.C. § 3553(a) factors. In particular, the Court found that the District Court gave too much weight to Bass's background, especially when considering his convictions for serious crimes -- crimes for which the Government sought the death penalty. In reaching this conclusion, the Court also found that the District Court gave too much weight to Bass's low PATTERN score, noting that the test potentially underrepresented his risk of recidivism. 

On remand, the Court encouraged the District Court to consider certain facts that had changed since Bass's original motion. For example, the Court noted that COVID-19 infection rates had decreased markedly at FCI McKean since he filed his motion, and inmates at the facility had access to the vaccine. Finally, the Court noted that Bass had been offered, and refused, the COVID-19 vaccine.

The Court's decision in Bass is one of many considering the discretion afforded district courts in considering motions for compassionate release during the COVID-19 pandemic. These cases will no doubt continue so long as the pandemic rages.