Friday, January 11, 2019

Suppression of evidence is not a remedy for Magistrate Judge errors

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

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

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

Thursday, January 03, 2019

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

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

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

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

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

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

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

Wednesday, December 12, 2018

Error in admitting prior bad act leads to new trial for jail officer sentenced to 9 years for assault on inmate

Kevin Eugene Asher, a former Kentucky jail officer accused of beating inmates, is getting a new trial thanks to today's Sixth Circuit decision reversing his conviction for a violation of Federal Rule of Evidence 403.
Asher was a 32-year-old deputy officer at the Kentucky River Regional Jail when a jury convicted him of deprivation of civil rights and obstruction of justice for his role in (and later cover up of) an unprovoked, vicious assault of a 55-year-old inmate awaiting trial on a misdemeanor charge. The district court imposed a 9-year sentence.
Today's decision, written by Judge Bush, concluded that the trial court erred by allowing in testimony that Asher had beaten a prisoner and covered it up 2½ years earlier.
Asher conceded that prosecutors had sufficient evidence that the prior assault occurred, and that it was admissible under Rule 404(b) to prove that he acted purposefully.
But Asher argued that the evidence wasn't admissible under Rule 403, which provides a balancing test that allows exclusion of relevant evidence if "its probative value is substantially outweighed by the danger of unfair prejudice."
The Sixth Circuit decided that -- despite deference due to the trial court's evidentiary decisions -- the risk of unfair prejudice from introduction of the prior assault so outweighed its probative value that it constituted reversible error. 
The court first addressed probative value, explaining that, if the jury believed Asher committed the vicious assault at issue, then specific intent would have been obvious. "It is specious to think," the court reasoned, "that the jury might have disbelieved Asher's denials, yet acquitted him for lack of specific intent." And as to prejudice, the court found that, because the two assaults were "virtually identical," a curative jury instruction wasn't enough to mitigate the negative inference about Asher's character that would arise from evidence of the prior assault.
The court thus vacated both the conviction and the 9-year sentence, and remanded for a new trial.

Monday, December 10, 2018

ICE may detain and deport a defendant regardless of a district court's detention determination

The Bail Reform Act (BRA) and the Immigration and Naturalization Act (INA) seem to be in conflict.  The INA requires that a person subject to removal is not entitled to bail, and must be deported.  But what to do if that same person is charged with a federal offense, and the district court finds that the person is entitled to bail under the BRA?

The Sixth Circuit has held that in such situations, the district court cannot interfere with the requirements of the INA.  In United States v. Veloz-Alonso, the district court found that the defendant, an illegal alien, was subject to bail under the BRA.  The United States informed the court that, if the defendant was released, ICE would likely detain and deport him prior to resolution of the criminal case.  The district court, wanting the defendant to be released on bail, then entered an order enjoining ICE from such action. 

The United States appealed, and the Sixth Circuit reversed.  Recognizing the conflicts between the BRA and the INA, the  Court found that "nothing in the BRA prevents other government agencies or state or local law enforcement from acting pursuant to their lawful duties."  Thus, while a district court is able to release such a defendant under the BRA, the court may not halt application of the requirements of the INA. 

Wednesday, November 21, 2018

Tennessee drug convictions were not “serious drug offenses” for purposes of the Armed Career Criminal Act (ACCA) 

           In United States v. Rockymore, the defendant, Dewayne Rockymore, pleaded guilty to being a felon in possession of a firearm and ammunition. Based on prior convictions for burglary and “three delivery-of-cocaine charges,” the government contended that Mr. Rockymore’s sentence should be enhanced under the ACCA, which requires that an offender have at least three prior convictions “for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). Mr. Rockymore conceded that his burglary conviction was a “violent felony” and one of his delivery-of-cocaine charges qualified as a “serious drug offense,” but he argued that the other two delivery-of-cocaine convictions did not meet the definition of a “serious drug offense.” The district court agreed and the government appealed. The Sixth Circuit affirmed the district court’s ruling.

          Since the ACCA defines a “serious drug offense” as any controlled substance conviction for which the “maximum term of imprisonment” is ten or more years, the Sixth Circuit looked to Tennessee law to determine the statutory maximum. That required consideration of two sentencing statutes which “work in concert.” The first is what the Sixth Circuit called “the felony-based statute” which classifies felonies and their authorized sentences. Delivery-of-cocaine is a Class C felony which is punishable by a minimum sentence of three years and a maximum sentence of fifteen years.

          The second statute is described as “the range based statute” which uses the offender’s criminal history to narrow the sentencing range. For example, an offender with no criminal record is classified as “Range 1” and if he or she were to commit a Class C felony the sentencing range would be three-to-six years imprisonment. The Sixth Circuit noted that unlike the federal sentencing guidelines, the “specific ranges are mandatory” under Tennessee law.   

          To decide whether the delivery-of-cocaine convictions were “serious drug offenses” under the ACCA, a federal court must consider the felony-based statute and the range-based statute to determine the “maximum term of imprisonment.” The district court did so and concluded that the two delivery-of-cocaine convictions were not ACCA predicates because Mr. Rockymore was a Range 1 offender convicted of two Class C felonies and was subject to a six-year maximum sentence for each.

          On appeal, the government cited Tennessee Supreme Court cases to support its argument that the district court should only have considered the felony-based statute which set out the “maximum term of imprisonment.” The Sixth Circuit found those cases inapposite because they either dealt with the limited power of state courts to review sentences in post-conviction or habeas corpus proceedings or they showed that a defendant could agree in a plea bargain to “a sentence beyond the maximum range.” There is, however, a caveat for a defendant who is in the latter situation.

          In footnote 1 of its opinion, the Sixth Circuit pointed out that Tennessee defendants can agree “to accept a higher sentence than that imposed by the range-based statute so long as it falls within the broader felony-based statute’s authorized sentences.” But, “a defendant like Rockymore is not subject to the broader penalty unless he agrees to a plea-bargained sentence (which waives any objection to his offender classification).” A defendant who agrees in a plea bargain to a higher sentence “would be subject to the ACCA’s enhancement under the broader felony-based statute. But for defendants like Rockymore, the range-based statute provides their maximum sentence.”

          The Sixth Circuit further noted that the government’s interpretation of Tennessee law would make its “statutory scheme ambiguous at best” and the rule of lenity requires that when there are “two equally-persuasive interpretations” of a criminal statute it must be construed in the defendant’s favor.

          The Sixth Circuit concluded that Mr. Rockymore’s delivery-of-cocaine- convictions were not “serious drug offenses” under the ACCA because the “maximum term of imprisonment” for each was six years. He therefore did not qualify for an ACCA sentence enhancement.   




Tuesday, October 23, 2018

Does Operating an Airplane Include Preflight Activities?

In a case of first impression, the Sixth Circuit interpreted the term “operate” under 18 U.S.C. § 342, which criminalizes operating a common carrier while intoxicated.  The defendant—a commercial airline pilot—arrived to work drunk.  Scheduled to fly that day, he prepared the plane for flight, including calibrating and programming instruments and requesting clearance from traffic control.  However, before passengers boarded, the co-pilot informed authorities that the defendant was drunk, and he was arrested.

Charged with operating a common carrier while under the influence of alcohol, the only issue at trial was whether the defendant “operated” the plane through his preflight preparations.  The district court ultimately instructed the jury that “[f]or a commercial pilot [“operate”] includes anything the pilot does or directs in his capacity as a pilot before, during, or after flight, but only if . . . the activity or direction was directly and proximately linked to actual operational or functional requirements for the flight.”  The jury subsequently convicted the defendant.

On appeal, a divided panel affirmed the conviction.  Noting that the no federal court of appeals had interpreted the term “operate,”  the Court held that the district court properly instructed the jury.  It rejected an interpretation of “operating” that would include only flight itself.  The Court held that such a definition would problematically excluded the preflight operations needed to fly safely. Thus, considering an airplane pilot's role and the statute's “public safety purpose,” the district court properly instructed the jury.

The dissent argued that the defendant’s actions were merely an attempt to operate the plane, a situation that the statute does not criminalize.  Focusing on the common law definition of “common carrier,” the dissent noted that not all airplanes are common carriers; only those transporting public passengers or freight qualify.  Accordingly, the key function of a common carrier is to transport such passengers or freight, and “operating” a carrier means controlling its functions. 

Thus, under the dissent’s view, the defendant never operated a common carrier.  While the defendant conducted preflight activities, no passengers boarded and the plane never moved.  Therefore, he never controlled the transport of passengers.

Instead, the defendant merely attempted to operate the carrier.  However, 18 U.S.C. § 342 fails to criminalize attempts.  Thus, the dissent would have reversed.

Given the divided panel and the issue of first impression, it will be interesting to see whether the Sixth Circuit reviews the decision en banc.  Opinion available here.

Thursday, October 11, 2018

We Repeat, Time-Served Sentences Are Unlawful

In United States v. Mitchell, the Sixth Circuit addressed cross-appeals from a grant of habeas relief under 2255 based on the inapplicability of the Armed Career Criminal Act. Mr. Mitchell was resentenced at the district-court level, because he no longer qualified as an armed career criminal. Because he had already served a seventeen-year term of incarceration, more than the maximum sentence that applied to him without application of the ACCA, the district court imposed a sentence of "time served" and released Mr. Mitchell.

On appeal, the Sixth Circuit reminded the parties that "this precise issue" had already been decided in United States v. Nichols, 897 F.3d 729 (6th Cir. 2018). In Nichols, the Sixth Circuit held that a time-served corrected sentence is unlawful, because it makes the length of actual incarceration served the length of the sentence imposed, even though that amount of time is beyond the applicable Guideline range and often beyond the statutory maximum sentence available. The Court also took pains to point out the four different options available to a district court in habeas: 1) discharge the petitioner, 2) grant the petitioner a new trial, 3) resentence the petitioner, or 4) correct the sentence.

A corrected sentence is subject to reasonableness review. But interestingly, a full resentencing is not needed. Instead, the district court may "impose a corrected sentence based on a brief order, a hearing that resembles a de novo sentencing proceeding, or anything in between." Mitchell (quoting Nichols at 738). In other words, not ever habeas revision of a sentence requires a full resentencing - and what degree of corrected process is required is based on the individual situation at hand. It is also a matter of judicial discretion.

It is worth noting that Mr. Mitchell also attempted to challenge his three-year term of supervised release, presumably because he served additional time beyond the lawful sentence. However, the Sixth Circuit declined to address the question in light of the remand. Instead, it directed the district court to "take the opportunity to provide an appropriate rationale for its supervised release decision."