Becoming Emboldened

Busy day in that the Sixth published four criminal cases: two direct appeals and two habeas cases.

The first of the direct appeals was United States v. Bullock, Case No. 07-5632. In Bullock, the defendant "made threatening telephone calls to the offices of several public officials, including United States Congressman Harold 'Hal' Rogers, Pulaski County Circuit Court Judge David Trapp, and Pulaski County Circuit Court Clerk George Flynn," stating that he "was going to 'get rid of' these officials." Police went to the defendant's home where they located a SKS semi-automatic rifle. He was initially charged with intimidating a judicial officer and terroristic threatening in Kentucky state court, but those charges were later dismissed. ATF agents subsequently discovered that at the time of his arrest, Mr. Bullock was subject to a domestic violence order. The defendant was prosecuted for being in possession of a weapon while subject to a domestic violence order under 18 U.S.C. S 922(g)(8). The defendant pled guilty. The PSR calculated Mr. Bullock's Guideline range to be 18 to 24 months after the defendant's base offense level of 14 was enhanced four levels for possessing a firearm in connection with another offense under S 2K2.1(b)(6). The defendant received a three level reduction for acceptance of responsibility. Mr. Bullock appealed the district court's enhancement, arguing that the the test for whether a firearm was possessed in connection with another offense, i.e. Application Note 14 to S 2K2.1 ("if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense respectively"), amounted to double counting because all firearms had the potential for facilitating another felony offense. The Sixth found that the district court enhanced the defendant's sentence "not because of the mere theoretical possibility that the firearm would be used in some unspecified crime in the future, but rather because of the very real likelihood that Bullock's possession of the [firearm] facilitated Bullock's threats to 'get rid of' several public officials, including a United States Congressman." The Sixth stated that they had "never found that the S 2K2.1(b)(6) enhancement can be applied simply because there is a theoretical possibility that the firearm may be used to commit a felony at some unspecified future time."

However, the Sixth's reasoning on how the possession of a firearm "facilitated" the defendant's making threatening telephone calls is weak. The Sixth finds it axiomatic that the possession of the firearm facilitated the threatening phone calls because Mr. Bullock "was undoubtedly emboldened in the commission of this offense by his possession of a semi-automatic rifle, to which he openly admitted ownership when officers arrived at his home." Unless the government is arguing that Mr. Bullock used the barrel of the SKS to dial the telephone, I personally do not see how possessing or not possessing a firearm while one is making threatening phone calls facilitates anything. It may facilitate a subsequent theoretical assault, but not the threatening phone call. Apparently in the Sixth Circuit, if you illegally possess a .45 caliber pistol that emboldens you to the point of committing tax fraud, then S 2K2.1(b)(6) applies. This test for facilitation is a dangerous precedent because any criminal committing any crime can be emboldened through the mere possession of a firearm, even if the firearm has no ability to facilitate the actual commission of the alleged offense. Defense attorneys should try to nip this "emboldenment" test for facilitation of another felony in the bud.

In the other direct appeal this morning, United States v. Smith, Case No. 07-1375, the Sixth Circuit unsurprisingly found that prisoners released from prison to a "community residential home" did not have a reasonable expectation of privacy in their home. In analogizing the community residential home situation to that of probationers, parolees, and prisoners, the Sixth found that the defendant was "treated as a 'prisoner' living in a 'community residential home'," because he was subject to continuous monitoring and had to ask permission to leave the home. Relying upon the Supreme Court's opinion in Samson v. California, 547 U.S. 843 (2006), the Sixth found that officer's warrantless search of the defendant's home did not violate the Fourth Amendment because "Smith had little, if indeed any, reasonable expectation of privacy in being free from a suspicionless search of his residence."

Because I rarely practice habeas law, I often skip over habeas cases because of the inevitable lengthy procedural details that are contained in the opinion. I know it is a bad habit, but I only have so much time. But Harris v. Haeberlin, Case No. 05-5591, is interesting enough for me to comment on. In Harris the defendant had been tried in Kentucky state courts for kidnapping, robbery, and being a persistent felony offender. In jury selection, the defendant challenged the state's use of its peremptory challenges as being motivated by race under Batson v. Kentucky, but the trial court found that the state had race-neutral reasons for the challenges. After his conviction in trial, but before his appeal to the Kentucky Supreme Court, the defendant discovered that an in-court video recorder had turned on during a recess and recorded the prosecutor's discussion of their use of peremptory challenges. After pursuing his state court appellate and post-conviction procedures, the defendant raised whether or not the trial court should conduct another Batson hearing based upon the newly discovered evidence at the district court, which was subsequently denied. The Sixth Circuit found that it was necessary to remand the case for the trial court to "reassess prosecutorial credibility in light of the videotaped evidence." This case appears to rest upon the unusual occurrence of the defendant actually having hard evidence, versus circumstantial evidence, of a prosecutor's use of race in his decision-making on peremptory challenges.

In a ruling that finds the improper admission of 404(b) evidence harmless, Cristini v. McKee, the other habeas case today, the Sixth Circuit reversed a district court's grant of habeas relief to a petitioner based upon "the prosecutor's introduction of evidence of prior convictions in the state's case-in-chief and the prosecutor's arguments that the Petitioner's prior convictions showed a propensity for violence." The Sixth Circuit reversed the district court's finding that the prosecutor's use of prior bad acts evidence to argue that the defendant had a propensity towards violence was error, but also finding that the Michigan Court of Appeals was correct in finding the error harmless in light of "the admissible evidence that established the Defendant's guilt." The defendant also argued that the prosecutions calling defense witensses liars in closing was misconduct. However, the Sixth Circuit found that it was not misconduct because "the prosecution's argument was coupled with a detailed analysis of the record. Each time the prosecutor said some witness had lied, he explained why the jury should come to that conclusion. While his repeatedly calling these witensses 'liars' was hardly praiseworthy, these comments, viewed in context, were not improper."