Divided opinion upholds cell phone search


In a divided opinion, the Sixth Circuit upheld an illegal warrant search of two cell phones based on the Leon good faith exception.

Officers arrested Fharis Smith and seized his two cell phones. They received a search warrant for the cell phones based on an affidavit that included the following information: a known source who requested anonymity, and several anonymous sources, stated that Mr. Smith and another man were involved in a shooting; someone at the shooting may have sustained a gun-shot wound and the other named man was found with a wound; Mr. Smith was arrested in possession of a firearm; and in the officer’s experience, people often plan and undertake criminal activity using their cell phones.

Mr. Smith argued that the affidavit lacked probable cause because it did not contain sufficient corroboration for the known-but-unnamed and anonymous informants’ statements, and that it did not provide a nexus between his cell phones and the shooting.

The lead opinion, authored by Judge Guy, strongly suggested that the affidavit provided sufficient corroboration and nexus but ultimately declined to decide whether the warrant had probable cause. Instead, the opinion concluded that either way, the search qualified for the good faith exception because there was no binding precedent dictating that the warrant violated the Fourth Amendment.

Judges Clay and Moore each wrote separately. They agreed that the affidavit did not provide probable cause, making that the majority holding. Judge Clay found that the affidavit failed to show the veracity of the tipster’s statements because it did not note their past reliability, their personal knowledge, or show officer’s corroboration. As for the nexus, Judge Clay wrote that it was clearly lacking: simply alleging that people regularly use phones in the planning and commission of crime was insufficient. United States v. Bass was distinguishable, the concurrence wrote, because its affidavit specifically alleged that the defendant used cell phones to communicate with co-defendants. Judge Clay would have found that the Leon good faith exception did not save the warrant.

Judge Moore joined in the portions of Judge Clay’s opinion regarding the illegality of the warrant, but ultimately agreed with Judge Guy that the Leon good faith exception applied.

In Federal Sentencing, Sometimes a Dismissed Charge Is Still a Conviction

It's a familiar issue for federal criminal practitioners that relevant conduct under the sentencing guidelines can include conduct beyond the offense of conviction, including uncharged conduct and even acquitted conduct. But the decision in United States v. Nedelcu highlights a quirk that goes one surprising step further--under the federal sentencing guidelines, even enhancements that depend on a "conviction" do not require a conviction.

A federal grand jury indicted Liviu-Sorin Nedelcu on one count of conspiracy to commit RICO under 18 U.S.C. § 1962(d), one count of conspiracy to commit wire fraud under 18 U.S.C. § 1349, and one count of conspiracy to commit money laundering under 18 U.S.C. § 1956(h). He entered into a plea agreement that called for him to plead guilty to the RICO conspiracy charge, and the government agreed to move to dismiss the other charges. As part of the factual basis for his appeal, he admitted to facts that established the elements of all three charges.

The presentence report's guidelines calculation included two two-level enhancements that applied only "[i]f the defendant was convicted under 18 U.S.C. § 1956." See U.S. Sentencing Guidelines Manual § 2S1.1(b). Nedelcu objected--after all, he pleaded guilty only to RICO conspiracy, and the government agreed to dismiss the other charges, including the charge under section 1956. He was convicted only under 18 U.S.C.§ 1962(d), not 18 U.S.C. § 1956. Surely this was a winning objection.

Not so fast. Under Guidelines § 1B1.2(c), "a plea agreement . . . containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offenses." Because the factual basis of Nedelcu's plea agreement satisfied the elements of money laundering under 18 U.S.C. § 195, he was "convicted" of money laundering for purposes of the sentencing guidelines. Thus the two two-level enhancements applied, increasing Nedelcu's guidelines range from 51-63 months to 78-97 months in prison. The district court sentenced him to 82 months, and the Sixth Circuit affirmed.

Through his plea agreement, Nedelcu avoided a conviction for money laundering. But he still ended up with a "conviction" for money laundering when it mattered most--at sentencing. 

Court Upjolds Conviction and Sentences in Complex Bitcoin RICO and Money Laundering Case

 Perhaps we should not trust all the ads we see on the internet. A Romanian organization known as the Alexandria Online Auction Fraud Network ("AOAF Network") used fraudulent online advertisements on websites such as eBay, Amazon, Craigslist, and others, to lure unwitting purchasers in the United States to "purchase" high value items that did not exist. To launder its ill-gotten gains, the AOAF Network utilized individuals in the United States, such as Dimitrious Brown, to launder the money by converting the payments into Bitcoin currency, which they then transferred to Romania. Foreign Bitcoin exchange businesses, including RG Coins, a company based in Bulgaria and operated by Rossen Iossifov, subsequently transferred the Bitcoin balances to cash on behalf of the AOAF Network members. The purchasers never received the items they believed they purchased.

A federal grand jury subsequently indicted 20 defendants involved in the scheme, including Brown and Iossifov. The Government charged Brown with one count of conspiring to engage in racketeering in violation of RICO. Brown ultimately pleaded guilty, and the District Court sentenced him to 78 months imprisonment. 

The Government similarly charged Iossifov in engaging in a RICO conspiracy. Iossifov, who assisted the conspiracy from Bulgaria, was eventually arrested and extradited to the United States. In addition, it charged him with one count of conspiring to commit money laundering in violation of 18 U.S.C. § 1956(h). A jury subsequently convicted Iossifov on both counts. 

Iossifov challenged his conviction, and both Iossifov and Brown challenged their sentences on appeal. The Sixth Circuit eventually consolidated their appeals, and, in a published opinion, affirmed Iossifov's conviction and the sentences for both defendants.

On appeal, Iossifov challenged the District Court's order denying the motion to dismiss the superseding indictment for improper venue, impermissible extraterritorial application of 18 U.S.C. § 1962(d) and 18 U.S.C. § 1956(h), and a violation of due process. The Court rejected Iossifov's venue challenge, holding the Government produced substantial evidence demonstrating that acts in furtherance of the RICO conspiracy occurred in the Eastern District of Kentucky.

The Court next addressed Iossifov's argument the District Court lacked the jurisdiction to hold him responsible for the RICO and money laundering conspiracies. It held that since at least part of the AOAF Network's conspiratorial conduct occurred in the United States, the District Court could exercise jurisdiction over Iossifov.

The Court also rejected Iossifov's argument that the money laundering statute did not apply to Bitcoin transactions because it is "not currency." Citing decisions from other federal jurisdictions, the Court held that Bitcoin can constitute a "monetary instrument" or "funds" under the money laundering statute.

Iossifov also argued the District Court violated his due process rights by exercising jurisdiction over him. The Court disagreed with this argument as well. Holding 18 U.S.C. § 1956 demonstrated Congress' intent that it apply extraterritorially, and that the District Court correctly found a nexus between Iossifov and the United States, the Court held the District Court did not error in dismissing his motion to dismiss.

The Court next addressed Iossifov's challenge to the sufficiency of the evidence against him. Iossifov argued the Government failed to prove he knew the Bitcoin he exchanged came from fraudulent activities. The Court disagreed, finding the Government offered sufficient evidence to convict him on both counts.

Iossifov also raised several evidentiary objections on appeal, none of which convinced the Court. First, he argued the District Court erroneously admitted certain statements under the co-conspirator exception to the hearsay rule because the declarant did not make them in furtherance of the conspiracy. The Court disagreed, holding that the declarant's statements were more than just "casual conversation," and that he made them to further the conspiracy's objectives.

Iossifov also asserted the District Court erred in admitting evidence he participated in a separate internet fraud network, asserting it was improper "other act" evidence under FRE 404(a). Again, the Court disagreed. Citing FRE 404(b)(2), the Court held the District Court correctly found it was evidence proving Iossifov's knowledge of the conspiracy at issue and that any prejudice from the evidence did not substantially outweigh its probative value under FRE 403.

After his trial, Iossifov moved for a new trial based on evidence one of the witnesses in his case made misrepresentations in preparation for his sentencing hearing. The Court affirmed the denial of this motion, holding that, in the end, regardless of how it may have undermined the witnesses's credibility, it would not have resulted in an acquittal.

Iossifov also raised two sentencing objections. First, he argued the District Court erred by imposing a two-level enhancement for obstruction of justice based on his testimony during his trial. He also objected to the District Court's calculation of the amount of laundered funds, which resulted in an 18-level enhancement, rather than a 16-level enhancement, under the Guidelines. 

The Court rejected both arguments. It found the District Court properly found that Iossifov lied during his testimony when he testified his company did not have a specific email account linked to emails with the AOAF Network co-conspirators. In addition, it held the District Court properly calculated the amount of money laundered by relying upon relevant conduct and the Secret Service's calculation of the funds involved in various transactions.

Turning to Brown's appeal, the Court considered the two objections he raised to his sentence. First, Brown asserted the District Court erred in imposing a two-level enhancement for obstruction of justice for sending false tax filings to the presiding judge, lead prosecutor, and the Clerk of the Court, claiming they owed him millions of dollars, arguing such conduct did not meet the requirements of U.S.S.G. § 3C1.1. The Court rejected this argument, noting the list of conduct governed by U.S.S.G. § 3C1.1 is not exhaustive, and that the District Court did not have to find that his conduct affected the proceedings in any way.

With respect to Brown's amount of loss argument under U.S.S.G. § 2B1.1(b)(1)(I), the Court held the District Court properly calculated the amount of loss. Rejecting Brown's assertion he was only responsible for the proceeds he laundered ($664,000), it held the District Court properly attributed $2.74 million laundered by him and his co-defendants in the United States into its loss calculation.


Court Upholds Stop Based on Violation of Ohio's "Sidewalk Area" Law.

Section 4511.431 of the Ohio Revised Code requires drivers to stop before driving onto a "sidewalk area extending across the driveway." What is a "sidewalk area"? Joseph Stevenson learned the hard way when a police officer stopped him after observing him allegedly violate that law.

A police officer observed Stevenson leave the parking lot of an apartment complex. Unfortunately for him, two sidewalks ran perpendicularly to the area where the driveway entered the street. The sidewalk did not cross the driveway. Although he stopped before entering the street, Stevenson failed to stop before crossing the area where the sidewalk would normally cross the driveway opening. The officer subsequently stopped Stevenson and, after smelling marijuana, and after Stevenson admitted he had marijuana, searched the vehicle. The officer immediately discovered marijuana in the vehicle, and, after continuing his search, discovered a gun in the glove compartment. 

Unfortunately for Stevenson, he was a convicted felon, leading a federal grand jury to indict him for being a felon in possession of a firearm. He subsequently moved to suppress the marijuana and gun seized from his vehicle, and, after the District Court denied his motion, he entered a conditional guilty plea.

On appeal, the Sixth Circuit issued a published opinion affirming the District Court's order upholding the search. It rejected Stevenson's argument that the officer lacked probable cause, holding that, even if he misapplied Ohio law, he reasonably relied on § 4511.431(A) to stop Stevenson.

In addition to challenging the stop, Stevenson argued the officer lacked probable cause to search his vehicle, or, in the alternative, the officer unreasonably extended the search that ultimately led him to discover the firearm. Not so, said the Court. The odor of marijuana, and Stevenson's admission, gave the officer probable cause to search the vehicle. Additionally, it held the officer also had probable cause to search the entire car for marijuana, including the glove compartment.

Like a Box of Chocolates: You Never Know What You Are Going to Get With a Jury

You never know what you will get with a jury. Sometimes, you get jurors who have watched two many episodes of CSI. Sometimes, you get jurors who drink tall boys during lunch. The latter was true in United States v. Ozomaro

A federal grand jury indicted Anthony Ozomaro for one count of possessing with intent to distribute 50 grams or more of methamphetamine. The case that followed was far from normal, however, as Ozomaro's actions ultimately led the District Court to order him to undergo a competency evaluation. Although the psychologist found Ozomaro suffered from mental illness, he found him competent to stand trial. 

Getting Ozomaro to trial was no easy task. The District Court permitted his attorney to withdraw and allowed Ozomaro to proceed pro se with standby counsel. Ozomaro then moved the District Court to dismiss his indictment, and, after it denied his motion, he stated he would not attend his trial.

True to his word, on he morning of his trial, Ozomaro refused to leave his holding cell at the courthouse. The District Court then dismissed the jury and adjourned his trial for four months. 

Ozomaro ultimately proceeded to trial in October 2021, and, after two days of evidence, the jury began their deliberations. After six hours of deliberations, the jury notified the District Court that it was having difficulty reaching a unanimous decision. This lead the District Court to issue an Allen charge. 

The next day, jury deliberations took a strange turn. Multiple jurors notified the court that a juror was drinking beer during lunch and had expressed bias toward the Government. After questioning each juror, the District Court concluded one juror -- Juror 109 -- was the cause of all of the complaints. The District Court subsequently dismissed the juror, not for his drinking, but for his purportedly professed bias toward the Government. Replacing Juror 109 with an alternate, the District Court instructed the jury to begin their deliberations anew. It returned a guilty verdict three hours later.

The District Court subsequently sentenced Ozomaro to 168 months imprisonment. In calculating his sentence, the District Court imposed a two-level enhancement for obstruction of justice under USSG § 3C1.1 because he refused to appear for his first trial date. 

On appeal, Ozomaro challenged the District Court's decision to remove Juror 109, arguing the jury wanted him removed because he was a holdout juror. In addition, he challenged the District Court's decision to impose the two-level enhancement for obstruction of justice under the Guidelines.

In a published opinion, the Sixth Circuit affirmed the District Court's jury selection and the sentence it imposed. First, it held the District Court conducted a sufficient inquiry to determine whether good cause existed to remove Juror 109. It also found that the District Court did not err in concluding good cause existed to remove the juror, adopting the "reasonably possibility" standard adopted by other circuits for determining whether a juror is, in fact, biased, or whether the perceived bias relates to the juror's disagreement with the evidence. Under this standard, the Court held that a District Court should excuse a juror in such a situation "only when no 'substantial possibility' exists that [he] or she is basing [his] or her decision on the sufficiency of the evidence." 

In this case, the Court found the District Court properly concluded "no substantial possibility" existed Juror 109 merely disagreed with the evidence presented and was, in fact, biased against the Government. The fact that multiple jurors informed the District Court about a juror who expressed bias toward the Government was sufficient to remove that juror for cause.

The Court also rejected Ozomaro's challenge to his sentence. Noting that his refusal to appear for his original trial date resulted in a two-month delay, the Court held the District Court did not err in finding Ozomaro obstructed justice for the purposes of § 3C1.1.  

21 USC 851 On Trial: What Must Go to a Jury...if anything?


The dreaded 851 Notice: it hangs above many defendants' heads like the Sword of Damocles -- waiting to fall. The First Step Act, however, softened its blow by reducing the length of the mandatory minimum sentences available under 21 U.S.C. § 841(a)(1) and by narrowing the types of offenses that might trigger such a notice. Litigation surrounding 21 U.S.C. § 851, however, continues, as shown in the Sixth Circuit's opinion in United States v. Fields.

In 2019, a federal grand jury indicted Defendant Timmy Fields of possessing 500 grams or more of methamphetamine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The indictment also alleged Fields had two prior serious drug felony convictions under Kentucky law: (a) Trafficking in a  Controlled Substance in the First Degree in violation of KRS 218A.1412; and (b) Unlawful Possession of a Methamphetamine Precursor and Persistent Felony Offender in violation of KRS 218A.1437 and KRS 532.080. Before trial, the Government filed a § 851 notice that it would seek a sentence enhancement based on these two prior convictions. The Government also sought, without Fields's objection, a bifurcated trial where the jury would fist consider the substantive drug offense and then determine whether Fields had previously been convicted of two serious drug felonies.

The day before the trial, the District Court considered which, if any, post-conviction facts should go to the jury during the bifurcated trial. The Government argued the jury must consider two incarceration-related facts -- that Fields served a sentence of more than twelve months for the prior offenses and that he was released from his imprisonment on each offense within fifteen years of the date he committed his current offense. Fields, however, argued § 851 required the District Court to make those findings, and, since it was contrary to Allene and Apprendi, it could not impose an enhanced sentence. The District Court disagreed, conducted the bifurcated trial, and sentenced Fields to 300 months imprisonment -- the enhanced mandatory minimum sentence.

On appeal, Fields challenged the procedure the District Court used to impose his enhancement. He first argued § 851 violated the Fifth Amendment because it compelled defendants to testify regarding their previous convictions (by requiring them to affirm or deny them), and that it violated the Sixth Amendment because it required the District Court, and not a jury, to determine facts he claimed the Constitution reserved for juries. Finally, he argued the District Court violated § 851 by sending facts regarding the length and recency of his incarceration to a jury and that it violated the Sixth Amendment by not requiring the jury to determine the finality of his prior qualifying convictions.

The Sixth Circuit made short work of Fields's Fifth Amendment challenge. Noting the Fifth Amendment only prohibited compelling defendants to incriminate themselves, the Court noted Fields never asserted the privilege, and, in fact, stipulated that he had been convicted of the offenses prior to his sentencing.

Although it noted Fields's Sixth Amendment challenge presented a closer question, the Court found a way to avoid ruling on the issue. Noting that the jury, in fact, decided the referenced factual questions, the Court found that no constitutional violation occurred.

Turning to Fields's facial constitutional challenges, the Court held they failed as well because Fields could not demonstrate § 851 was unconstitutional as it applied to all convicted-related enhancements imposed on those convicted of an offenses pursuant to under 21 U.S.C. §§ 841-65. 

An interesting, and closer, question, the Court conceded, was whether the District Court complied with  § 851 by sending the incarceration related facts to the jury. While it agreed § 851 precluded the jury's involvement in the proceedings, it noted the statute did not say when it precluded the jury from making those determinations. Since the § 851 hearing could not have occurred until Fields filed his response to the notice, phase two of his trial could not have been his § 851(c)(1) hearing. Thus, the Court concluded, the District Court did not violate the statute.

The Court also disagreed with Field's Sixth Amendment challenge to the District Court's decision not to send the issue regarding the finality of his prior convictions to the jury. Noting Fields did not raise this issue before the District Court, it held that his claim failed to survive plain error review.

While the Court's discussion of the procedure utilized by the District Court to make its § 851 determination is interesting, its holding regarding Fields's predicate convictions may prove more useful to practitioners. While it rejected Fields's argument that his previous conviction for Trafficking in a Controlled Substance in the First Degree under Kentucky law was not a predicate offense, it held that his prior Kentucky conviction for Unlawful Possession of a Methamphetamine Precursor and Persistent Felony Offender was not a "serious drug felony" under the First Step Act.

The Court first addressed the conflict between its own decision in United States v. Eason, which held that a similar Tennessee statute barring possession of methamphetamine ingredients was a "serious drug felony" under the ACCA because it related to or connected with manufacturing methamphetamine, and the Supreme Court's subsequent decision in Shular v. United States, which, Fields claimed, required the District Court to find that the offense "necessarily entail[ed] the conduct described in § 924(e)(2)(A)(ii). Finding Shular "directly on point," the Court adopted the "necessarily entails" test pronounced in that decision.

Applying the Shular test, the Court held that Unlawful Possession of a Methamphetamine Precursor under Kentucky law was not a "serious drug felony." Finding that one could violate the meth-precursor statute without committing manufacturing conduct, the Court held Kentucky's meth-precursor offense does not "necessarily entail" manufacturing under § 924(e)(2)(A)(ii) and thus did not constitute a "serious drug felony."  

Judge Murphy filed a concurring opinion supporting the Court's decision to follow Shular. Judge Rodgers dissented in part, noting the Court should not have adopted the Shular test and that it should have affirmed the District Court's decision.


After Borden v. United States, Ohio robbery conviction is not a crime of violence under U.S.S.G. § 4B1.2(a)’s “elements clause”  

          David Butts pleaded guilty to a drug offense and two firearm possession offenses. At sentencing, he contended that Borden v. United States, 141 S.Ct. 1817 (2021) precluded the use of his prior Ohio robbery conviction as a career offender predicate offense. He argued that under Ohio law the robbery offense did not require proof of any state of mind when using force. United States v. Butts, --- F.4th --- (6th Cir. 2022).  https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0163p-06.pdf  

          The district court found that the conviction was a crime of violence for purposes of a career offender enhancement. The court, however, varied downward and sentenced Mr. Butts to concurrent terms of 60 months on the drug offense and one of the firearm offenses. He was also sentenced to a mandatory, consecutive term of 60 months on the other firearm offense for a total of 120 months. (18 U.S.C. § 924(c)(1)(A)).

           The question is whether after Borden the robbery conviction is a crime of violence under U.S.S.G. § 4B1.2(a)’s elements clause. The government conceded that it is not but the Sixth Circuit did its own analysis of the issue.

         The conviction was based on Ohio Revised Code § 2911.02(A)(2) which provides in relevant part: “No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall … Inflict, attempt to inflict, or threaten to inflict physical harm on another.” The statute does not specify the mental state the defendant must have to support a conviction.

          The Sixth Circuit noted that under Ohio law “a person could commit a theft offense … purposefully or knowingly while recklessly or negligently inflicting physical harm …” Butts, Slip Op. 7-8. Furthermore, there existed a “realistic probability” that the statute would be applied “to conduct that falls outside the generic definition of a crime.” Id. at 8. Significantly, “Ohio courts have upheld § 2911.02(A)(2) convictions involving an infliction of harm due to, at most, a reckless use of force against another person.” Id. Thus, under Borden, the Sixth Circuit concluded that a robbery conviction under Ohio Revised Code § 2911.02(A)(2) “-at least one predicated on an unspecified § 2913.02 theft offense-is not a crime of violence under the elements clause of § 4B1.2(a) of the Guidelines.” Id.

          The court then considered whether the career offender designation made a difference in the sentence.  The drug conviction carried a mandatory minimum of 60 months as did the § 924(c) firearm conviction which had to run consecutively for total of 120 months. Since the district court could not have imposed a lower sentence, the error was harmless.  

          Note – The Sixth Circuit previously held in United States v. Johnson, 933 F.3d 540, 546 (6th Cir. 2019) that a conviction under Ohio Revised Code § 2911.02(A)(2) is a crime of violence under the Guidelines. The court rejected the argument that recklessness is an insufficient mental state for a conviction to qualify as a crime of violence but it did not take a position on the state of mind required for a § 2911.02(A)(2) conviction. However, the Sixth Circuit now recognizes that to “the extent that Johnson conflicts with Borden, its holding no longer controls.” Butts, Slip Op. 4, n.3.            

Acquittal on one count does not preclude retrial on remaining two.


In Untied States v. Inman, the Sixth Circuit reversed the district court’s application of issue preclusion based on one acquitted count and remanded the case for retrial on the two hung counts. Issue preclusion only prevents retrial when “the prosecution must prevail on an issue the jury necessarily resolved in the defendant’s favor in the first trial to secure a conviction.” Slip Op. p. 8.

Larry Inman a former elected representative in the Michigan House of Representatives was charged with (1) attempted extortion under color of official right, (2) soliciting a bribe, and (3) making a false statement to the FBI. The government argued Inman unlawfully solicited a campaign contribution from the Michigan Regional Council of Carpenters and Millwrights (MRCCM) in exchange for his vote on pending legislation. When Inman was interviewed by the FBI, he denied communicating with MRCCM on campaign contributions or soliciting the organization’s director for money.

At trial, Inman was acquitted of making a false statement to the FBI and the jury hung on the solicitation and extortion counts. The district court dismissed the two remaining counts, “concluding that the government was collaterally estopped from retrying the two counts based on the jury’s acquittal of Inman on Count III.” Slip Op. p. 7. The Sixth Circuit reversed, holding that ‘[l]ying to the FBI is not a fact essential to a conviction of the extortion and bribery-solicitation charges, so issue preclusion does not apply.” Slip Op. p. 12. Because it would be “rational for the jury to have reasonable doubt that Inman made a false statement to the FBI but find, at the same time, that Inman did intend to communicate a quid-pro-quo arrangement to the MRCCM through its representatives,” issue preclusion does not prevent retrial on the two hung counts. Slip Op. p. 12

The Sixth Circuit also rejected the district court’s addition of a “plus” factor to the quid-pro-quo communication analysis to avoid First Amendment concerns. While acknowledging there must be “something that moves permissible campaign actions over the line to criminal extortion and solicitation,” the Court noted that the government did not have to prove Inman lied to the FBI. Slip Op. p. 14. The government only needed to prove that “Inman extorted or attempted to solicit an agreement with MRCCM where Inman would vote in MRCCM’s favor on the [pending legislation] in exchange for payment.” Slip Op. p. 14. The key question on retrial is whether “Inman actually extorted or attempted to solicit such an agreement.” Because this question was not answered by the jury’s acquittal on Count III, issue preclusion does not apply, and a retrial is permissible.

Innocent explanations just don’t matter.


In United States v. McCallister, the Sixth Circuit affirmed the district court’s denial of a motion to suppress based on an unlawful search and seizure. The Court found there was reasonable suspicion to conduct the Terry stop and frisk of Dazhan McCallister.  

Akron police received an anonymous tip about a group of men smoking marijuana in a city park. Akron police view this particular park as a “high-crime area.” Over the next several hours, the police drove by the park on two separate occasions and confirmed a group of men were still gathered there. Officers later stopped at the park to investigate. As the officers approached the group of 15 men, they smelled marijuana. Several of the men, including McCallister tried to walk away. An officer ordered them all to stop and place their hands on their heads. McCallister complied. Officers saw a “little bump out” on McCallister’s shirt and concluded it was a gun, which was confirmed when McCallister raised his hands and his shirt lifted. Officers then frisked him.

McCallister moved to suppress the firearm arguing it was found after an unlawful search and seizure. Specifically, he argued the smell of marijuana could have been hemp, a legal substance, and even if it was an illegal substance there was no evidence he was smoking marijuana versus “merely standing near other wrongdoers.” The Sixth Circuit rejected those arguments concluding “[r]easonable suspicion, remember, does not require proof that the suspect committed a crime.” Slip Op. at p. 7. In determining whether reasonable suspicion exists courts “view the totality of the circumstances through an objective lens, asking whether there was a moderate chance, arising from articulable facts and inferences, that the person stopped was engaged in criminal activity (Terry stop) and was armed and dangerous (Terry frisk).” Slip Op. at p. 6. The Court found reasonable suspicion for the Terry stop existed based on the anonymous tip, the confirmation by police the group was still present in the park, the smell of the marijuana when officers arrived, the known high-crime area, and the fact that McCallister tried to walk away from the officers.

The Court also upheld the frisk of McCallister. McCallister argued the officers did not have reasonable suspicion to search him because Ohio is an open carry state, meaning it may have been legal for him to have the firearm. That, the Court concludes, makes no difference. “Under Terry, after all, officers may frisk a suspect who legally carries a firearm under state law if they reasonably suspect that he is armed and dangerous.” Slip Op. at p. 9. The officer’s observance of the “bump out” in McCallister’s shirt was enough reasonable suspicion to support the frisk. This was further supported by McCallister’s attempt to hide the weapon and the high-crime location.


Kentucky’s second-degree robbery is a force clause offense.


In United States v. Williams, the Sixth Circuit held Kentucky’s second-degree robbery (Ky. Rev. Stat. Ann. § 515.030) is a violent felony under the force clause. The statute requires a sufficient level of physical force and requires the individual to use force with the specific intent to accomplish the theft, which satisfied the mens rea requirement.

Relying on Stokeling v. United States, 139 S. Ct. 544 (2019), the Court held the level of force required under the force clause of the Armed Career Criminal Act (ACCA) is force sufficient to overcome the victim’s will. The Court then turned to Kentucky caselaw to determine what degree of force is required under the second-degree robbery statute. The Court, noting limited caselaw, concluded robbery in Kentucky requires the defendant to overcome the victim’s will and therefore matches the level of force the Supreme Court held to be sufficient in Stokeling. The Court acknowledged there were robbery cases from Kentucky that did not involve “physical resistance or aversion on the part of the victim” but dismissed those cases as being too old. Williams, No. 21-5856, Slip op. p. 7 (“Although these early Kentucky cases give us pause, Williams cites no recent Kentucky cases holding or implying that second-degree robbery can be committed with a level of force less than that identified in Stokeling.”).

Williams also argued the Kentucky statute could not be a force clause offense post-Borden because it did not contain the requisite mens rea as to the element of force. The Sixth Circuit disagreed, holding the statute required the individual to use force with the specific intent to accomplish the theft and that this specific intent satisfied the mens rea requirement set out in Borden v. United States, 141 S. Ct. 1817 (2021).

The Sixth Circuit also rejected Williams’ argument that his three prior robbery convictions were not committed on separate occasions because they were charged in a single indictment. The Court, applying the factors recently set out by the Supreme Court in Wooden v. United States, 142 S. Ct. 1063 (2022), found “[g]iven the substantial gap in time between Williams’s robbery offenses and some variety in locations, the offenses were committed on separate occasions under the ACCA.” Williams, No. 21-5856, Slip op. p. 12.

Bad Warrant, Good Faith

 In United States v. Helton, the Sixth Circuit affirmed the denial of a motion to suppress where the search warrant affidavit lacked probable cause but where the Court held the Leon good faith exception applied. Of note in this drug trafficking case, law enforcement built a short, two-paragraph affidavit in support of a search warrant on a "reliable source" saying he was at the house and saw another person purchase drugs from the defendant, as well as seeing the defendant in his doorway with a baggie that "looked like it contained residue" and some small bills of currency.

The Sixth Circuit conducts a robust analysis on the failings of the affidavit as a foundation for probable cause, including that no information is given about the reliability of the source of the tip, and that the alleged residue and stack of small bills hardly amount to evidence of much. It's a good source for black letter law on the probable cause warrant evaluation.

However, the Circuit ultimately affirmed the denial of suppression, holding that the search was saved by Leon and its good faith exception. Despite appellant's argument that the affidavit was bare bones, the Sixth Circuit noted its application of the "minimally sufficient nexus" standard. Specifically, it reasoned that because the tip was premised on underlying factual information suggestive of drug trafficking and a connection to the Mr. Helton's home, the totality of the circumstances provided some modicum of evidence that drug trafficking was occurring there - triggering the good faith exception.