Sixth Circuit continues to define the zone of timeliness for Batson challenges

Batson challenges must be timely, but the Supreme Court has never said how timely they must be, and the circuits have devised different tests.  The underlying concern is to force attorneys to make challenges before it becomes too late to remedy the situation without throwing out the entire trial.  Today in United States v. Russ, the Sixth Circuit further narrowed its test.  Previously, the Sixth has held that a Batson objection made after the venire was dismissed and the jury was empaneled was untimely.  In Russ, the Court held that objecting within a minute of a juror being excused was timely even if the juror has already left the courtroom.  The Sixth left open the question of whether an objection made more than a minute after the juror was excused, but before the venire was dismissed, would be timely.  Of course, it is always safter to do it sooner rather than later.

The CP Restitution Debate Continues

In re Amy Unknown, Nos. 09—41238, 09—41254, 09—31215 (5^th Cir. Nov. 19, 2012).

OK, sorry I missed my blogging week and have taken so long to make it up.  During my blogging week, the Fifth Circuit decided, en banc, the issue of restitution in CP cases.  I think it’s worth discussing.
 

Quick recap:

·         18 USC 2259 governs restitution in child-pornography cases. 

·         There was a circuit split over proximate cause.  Most circuits, including the Sixth, require proximate cause for a victim to receive restitution.  Couple theories on why that is so, but what matters is that they require it.  A panel of the Fifth Circuit, however, read 2259 to require proximate cause only for miscellaneous “other” losses, as detailed in 2259(b)(3)(F).  The ct took the issue up for rehearing en banc, and has now confirmed that proximate cause is only required for such “other” losses. 

·         Maybe this issue will make it to SCOTUS. 

 

Why do we care in the Sixth Circuit?

·         It’s generally an interesting issue.

·         The Fifth Circuit’s Amy Unknown decision provides some interesting background on statutory interpretation, proximate cause, joint and several liability, and the Eighth Amendment.  Interesting read.

·         The opinion also provides interesting background on mandamus and victim rights. 

Issue:

Whether 2259 requires district courts “to find that a defendant’s criminal acts proximately caused a crime victim’s losses before the district court may order restitution, even though that statute only contains a ‘proximate result’ requirement in § 2259(b)(3)(F).” 

Ct acknowledges that “All our sister circuits that have addressed this question have expanded the meaning of § 2259(b)(3)(F) to apply to all losses under § 2259(b)(3), thereby restricting the district court’s award of restitution to a victim’s losses that were proximately caused by a defendant’s criminal acts.” 

Basic holding:

Section “2259 only imposes a proximate result requirement in § 2259(b)(3)(F); it does not require the Government to show proximate cause to trigger a defendant’s restitution obligations for the categories of losses in § 2259(b)(3)(A)–(E).”

The district court awarded Amy nothing.  This failure to make an award was “clear[] and indisputabl[e]” error.  “No matter what discretion the district court possessed and no matter how confounding the district court found § 2259, it was not free to leave Amy with nothing.”

On remand, the district court must enter a restitution order that reflects the full amount of Amy’s losses.

 

Interesting points:

·       Government reported that restitution for Amy has been awarded in at least 174 CP cases.  Amounts range from $100 to $3,543,471.

·         Crime Victims’ Rights Act gives victims a right to mandamus relief, but not to appeal.  And this mandamus review is the traditional review; it does not involve the standard of review of a traditional appeal. 

·         Lots of statutory–interpretation discussion. 

·         The structure of 2259(b)(3) indicates that each category of loss is separate.

·         No 8^th Amendment issue b/c restitution is not punishment.  In the Sixth Cir., restitution is punishment!  United States v. Sosebee, 419 F.3d 451, 461(6^th Cir. 2005).     

·         When 2259 applies, there’s a two-step inquiry: 1) is the person seeking restitution a “victim”; and 2) what is the full amount of the victim’s losses.  Courts should focus on section 3664 to craft a restitution order; they should focus on the joint-and-several-liability mechanisms. 

·         There is a lot in the 58 pages of the opinions.  If you are a restitution and/or statutory-interpretation person, you should take a gander at it. 

 

Judge Dennis concurred.

He “would simply direct the district courts to proceed to issue and enforce the restitution orders in accordance with 18 U.S.C. § 3664 and 3663A, as required by § 2259(b)(2).”  He believes it best to permit district courts to craft procedural and substantive means for ordering restitution that take into account the “mandatory nature of full restitution” for victims under 2259 and the “mechanical difficulties of crafting orders given the possibility of multiplicitous liability among hundreds of defendants under circumstances that may change over time.”

He would leave the decision as to how to proceed under these statutes to the district courts.

Judges Davis, King, Smith, and Graves concurred in part and dissented in part.

They concluded that the proximate-cause proof required by the restitution statutes could be satisfied in the cases at issue, but they disagreed with the majority that the statute authorized restitution without any proof that the violation proximately caused the victim’s losses.

They agreed with the majority that the district court must enter a restitution award against every offender convicted of possession of the victim’s pornographic image, but disagreed on the issue of apportioning the liability.  In cases such as the ones at issue, where the offenses of multiple violators contributed to the victim’s damages, the district court need not enter an award against each offender for the full amount of the victim’s losses.

These judges noted that no other circuit had adopted “a one size fits all rule for the restitution feature of the sentence of an offender.”  They cited United States v. Evers, 669 F.3d 645, 658-59 (6th Cir. 2012), our Sixth Circuit decision. 

They “would grant mandamus and vacate the judgment in In re Amy and remand that case to the district court to enter an award consistent with the principles outlined above.”  And they give factors to consider when crafting a restitution award.

Judge Southwick dissented.

He agreed with the majority, relying on the last-antecedent rule, that the phrase "as a proximate result of the offense" in 2259(b)(3)(F) only modifies the category of loss described in subsection (F).

But he found persuasive the reasoning of the Second, Fourth, and D.C. Circuits on causation: it "is a deeply rooted principle in both tort and criminal law that Congress did not abrogate when it drafted § 2259."Top of Form

He would find that proximate cause must be shown and the principle of aggregate causation is the method for proving its existence.  District courts could award all damages to each defendant, but could also make lesser awards if properly explained.  He agreed that additional proceedings would be required in the cases at issue, but disagreed that each district court should be required to impose a restitution award of the full amount of the alleged damages.

Happy Thanksgiving

Enjoy the holiday, everyone.  It's my week to post, but b/c I won't be in the office the rest of the week, I will post early next week.  Sorry for the delay!

A win's a win

Today's Newsome case shows offers a bit of a technical knock-out, vacating a gun conviction on Fourth Amendment grounds involving, at least in part, the plain-view doctrine.

After an attempted shooting, officers obtained an arrest warrant for Mr. Newsome based on a witness's identification from a photo-array.  Upon executing the search warrant at Mr. Newsome's home, officers conducted their typical "protective sweep," finding crack cocaine and heroin on a dresser in the bedroom (natch).  They also searched the pocket of a jacket that they found in the kitchen, locating a handgun.  The Sixth Circuit's opinion, penned by Judge Sutton, found no problem with the arrest warrant, the protective sweep, or the seizure of the drugs.  But the gun was a different story.  It was not in plain view, and the warrant did not mention a gun. 

As the opinion notes, this won't affect Mr. Newsome's sentence, given that all of his sentences were to run concurrently, but it gets at least one felony conviction off his record (and saves him a $100 special assessment). 

Bostic is not dead

Recently, the Sixth Circuit released its decision in United States v. Romanini, 11-3670 (found here). It's an unpublished decision, but has an EXCELLENT discussion of substantive and procedural reasonableness, what arguments fall into which categories, and how to preserve sentencing objections for appeal. Romanini is a great refresher course on all things sentencing. It is worth your time, so give it a read.

Sixth Circuit slightly extends overbreadth zone for pornography supervised release conditions

Previously, the Sixth Circuit has struck down a supervised release condition which prohibits the possession of material which “alludes to sexual activity.”  Such a condition fails what could be called “the Bible test.”  That is to say, the condition is so overbroad, it would prevent the defendant from owning a copy of the Bible, and it therefore violates the First Amendment.  Today, in United States v. Zobel, the Sixth Circuit extended its previous holding and struck down a supervised release condition which banned “sexually suggestive” material for the same reasons:  it was overbroad because it violated the Bible test.

Zobel also contained a dissent which would have held that no amount of general discussion of the 3553 factors is sufficient to justify an upward variance.  Instead, the dissent believes that the district court must specifically and explicitly state the reasons for the variance.  So if your client receives an upward variance and the transcript does not contain the sentence “I am varying upward because of X, Y, and Z,” a procedural reasonableness appeal may be an option.

Supreme Court may be ready to overrule 6th Circuit and itself

In Harris v. United States, the Supreme Court held that increases to a mandatory minimum sentence (unlike increases to the statutory maximum) do not require the constitutional protections of Apprendi.  That is, the government can bypass indictment, jury trial, and the beyond a reasonable doubt standard for facts which merely increase a defendant’s mandatory minimum sentence.  But the fifth vote necessary for this result was provided by Justice Breyer, who only voted that way because he did not believe Apprendi was correctly decided.  At oral argument in United States v. O’Brien, Justice Breyer indicated that he now does accept Apprendi and might now vote in favor of overturning Harris.

Earlier this year in United States v. Dotson, the Sixth Circuit upheld Harris against a challenge that it should be overturned.  Dotson petitioned for cert. arguing that Harris and the Sixth Circuit decision in Dotson’s case should be overruled.  Finally last Friday, the Supreme Court granted cert. on an identical issue in Alleyne v. United States, and requested that the government respond to the cert. petition in Dotson’s case.  The results of the Supreme Court’s decision in Alleyne and Dotson could be huge for criminal defendants, especially those charged under 18 U.S.C. § 924(c).  So, stay tuned, be on the look out for a decision in Alleyne and Dotson, and preserve the issue if you have any clients facing an increase in their mandatory minimum sentence (such as a brandishing enhancement under 18 U.S.C. § 924(c)).

Disclosure:  The undersigned attorney was involved in the preparation of the cert. petition in Dotson.

What if I don't have a PageID#?!?!?!?!?

Some documents, like the Presentence Report, do not have PageID#s. Others, like sealed documents and transcripts, might not have accessible PageID#s at the time you file your brief. Per Cheryl Borkowski at the Sixth Circuit, if you don't have it and/or cannot get it, just don't put one in. The judges will not reject your brief.

As a personal practice, I think I'll be dropping a footnote at first reference to a transcript, to remind judges that I do not have access to the docketed transcript until well after I submit my brief.

Important rule change for citing to record in appeals

Rather than just citing to the page number of the particular document we are referring to (i.e. R. 36, Sentencing Memorandum, p. 3), we will now need to cite to the "PageID#" along with a brief title and the record entry number of the document referenced. This is Sixth Circuit Rule 28(a)(1). So I think a citation to the record would look something like this: (R. 36, Sentencing Memorandum, PageID#: 274). The PageID# can be found on the far right of the header or footer added to a filed document and is very clearly labeled "PageID#."

The judges are apparently getting iPads that will let them link directly to the record via PageID# in the briefs. This will take some getting used to, but make the change: "Counsel’s failure to do so may result in rejection of the brief."

The new lie-detector test?

Today saw publication of an opinion addressing "a matter of first impression in any jurisdiction": whether the results from a functional magnetic resonance imaging ("fMRI") lie detection test should have been admitted to prove that the defendant was not lying.  The defendant, a clinical psychiatrist and CEO of two healthcare companies, was accused of healthcare fraud and money laundering.  At trial, the district court rejected his attempt to introduce the results of an fMRI test showing that he was generally truthful when answering that his billing decisions were made without an intent to defraud.

Perhaps unsurprisingly, the new technology -- which purports to take detailed images of the parts of the brain associated with "truth telling" -- did not breeze past Daubert analysis.  Although there was some research backing the validity of the science, the district court found that even the supportive research recognized an error rate that was prohibitively high.  The Sixth Circuit opinion by Judge Stranch got into some slightly more philosophical areas, noting testimony from one of the supporters of the technology that "the issue that one faces with lie detection, is what is the real world baseline truth?"  In the words of pot-smoking college students everywhere: "It's like, what is truth anyway?"

So it looks like federal defender offices won't have to dip into already limited expert-witness budgets to pay for fMRI tests any time soon.  (It is not surprising that this issue was raised by a healthcare CEO and not, say, a meth dealer.)  But this question will continue to be raised, and this case will be an important early battle in the larger war over the capital-t "Truth."  Indeed, Judge Stranch quoted one professor in an ominous parenthetical: "[W]ere an accurate lie detector developed, the jury's unique role in determining witness credibility would be called into question." 

Implicit waiver of the right to counsel

In United States v. Coles, No. 11-1281 (Aug. 27, 2012), the Sixth Circuit found no reversible error in the district court’s failure to "engage in an exact model inquiry as set forth in the Bench Book for United States District Judges" before finding that the defendant had elected to represent himself at trial and waived his right to counsel.

The court acknowledged that in United States v. McDowell, 814 F.2d 245, 249-50 (6th Cir. 1987), it had "invoke[d] [its] supervisory powers" to require that whenever an accused indicates a wish to represent himself in criminal proceedings, the district court must engage in the model inquiry from the Bench Book "or one covering the same substantive points," and must make "an express finding that the accused has made a knowing and voluntary waiver of counsel . . . ."

Here, the district court did not engage in this required colloquy, but instead simply found that the defendant had implicitly requested to represent himself by firing four separate appointed lawyers in spite of the court’s repeated warnings that the inability to work with counsel would be treated as an intentional tactic to delay trial and a desire to proceed pro se. Thus, "[t]he district court was not faced with an accused who wished to represent himself, but rather with an accused who effectively waived his right to counsel by his conduct."

Because the district court had "advised Coles on several occasions with respect to the difficulties in self-representation," and because the fourth appointed attorney "was available throughout the trial as stand-by counsel" and "assisted . . . during the sentencing proceedings," the Sixth Circuit "s[aw] no reason in the context of our supervisory powers to instruct district court judges how to proceed when a defendant has, by his conduct, waived his right to counsel," and instead "l[eft] it to district court judges to determine how best to deal with a defendant, who by his or her conduct, has waived the right to counsel."

Subjective Intent and Threats

In United States v. Jeffries, No. 11-5722 (Aug. 27, 2012), the Sixth Circuit addressed whether a conviction under the federal threat statute, 18 U.S.C. § 875(c), requires proof of the defendant’s subjective intent to threaten. The case arose after the defendant posted to YouTube a video of himself performing an original song about his daughter and the judge presiding over her custody proceedings, in which he tells the judge (among many other similar things), "Take my child and I’ll take your life."

The parties agreed that the statute applies only to "objectively real" threats, meaning those for which "a reasonable person would have perceived . . . a true threat . . . ." And there did not seem to be any genuine dispute that under prior Sixth Circuit cases, a defendant’s state of mind is irrelevant under Section 875(c). But the defendant argued that the Supreme Court’s decision in Virginia v. Black, 538 U.S. 343 (2003)—which struck down a provision of the Virginia cross burning statute that treated "any cross burning as prima facie evidence of intent to intimidate"—was tantamount to a First Amendment requirement that "all communicative-threat laws" must "contain a subjective-threat element."

The Sixth Circuit disagreed, finding that Black "does not work the sea change that Jeffries proposes" and does not upset prior Sixth Circuit law addressing Section 875(c): "The reasonable-person standard winnows out protected speech because, instead of ignoring context, it forces jurors to examine the circumstances in which a statement is made . . . . A reasonable listener understands that a gangster growling ‘I’d like to sew your mouth shut’ to a recalcitrant debtor carries a different connotation from the impression left when a candidate uses those same words during a political debate. And a reasonable listener knows that the words ‘I’ll tear your head off’ mean something different when uttered by a professional football player from when uttered by a serial killer."

The court also rejected the defendant’s sufficiency of the evidence argument. While allowing that this appears to be "the first reported case of a successful § 875(c) prosecution arising from a song or video," the court found that "the statute covers ‘any threat,’ making no distinction between threats delivered orally . . . or in writing . . . , by video or by song, in oldfashioned ways or in the most up-to-date. . . . [O]ne cannot duck § 875(c) merely by delivering the threat in verse or by dressing it up with political (and protected) attacks on the legal system."

In addition to authoring the majority opinion, Judge Sutton wrote a separate "dubitante" opinion explaining that "Sixth Circuit precedent compels this interpretation of § 875(c)" and that Black "does not require a different interpretation," but "wonder[ing] whether our initial decisions in this area (and those of other courts) have read the statute the right way from the outset." He relied primarily on the fact that "[e]very relevant definition of the noun ‘threat’ or the verb ‘threaten[]’ . . . includes an intent component," and yet "[c]onspicuously missing from any of these dictionaries is an objective definition . . . ." Thus, the text alone seems to demand a subjective intent standard. Moreover, "Allowing prosecutors to convict without proof of intent reduces culpability on the all-important element of the crime to negligence." This rarity in criminal law should depend on "express congressional directive" rather than "some judicially manufactured deus ex machina . . . ."

World’s Most Ineffectual Bank Robber: “I have a gun” is not always a threat of death

In a split published decision, United States v. Wooten, Circuit Judge Moore found the statement “I have a gun” during a bank robbery did not support a two-level threat-of-death enhancement under § 2B3.1(b)(2)(F). The enhancement does not solely depend on the defendant's words. A sentencing court must also consider the context and the overall circumstances in which the statement occurred. These factors include: the statements, body language, overall demeanor, tone of voice, and mode of communication. Although the threat of death is an objective standard, a sentencing court can also consider whether the actual teller felt threatened when determining if a reasonable person would have been afraid under the same circumstances.

Mr. Wooten committed the bank robbery at issue by placing both hands on the counter and softly saying “I am going to rob you” in a nonchalant manner. When the teller hesitated due to his doubts of Mr. Wooten’s sincerity, Mr. Wooten stated “I have a gun. Give me your money,” at which point the teller handed over cash. There was no demand note, mask, disguise, or assertive commands. The teller testified he did not feel threatened during the robbery. In fact, Mr. Wooten was so non-threatening he left empty-handed earlier that day in an attempted bank robbery when the teller merely laughed at him. Mr. Wooten had no criminal history, stated he wanted to be caught, and committed the robbery because “he was just tired of living in his car and he was running out of money.” The opinion stresses this is a rare case and in the majority of cases the statement “I have a gun” is enough to warrant the enhancement.

The dissent states “I can think of just one reason why a bank robber would tell a bank teller he has a gun: to show he means business.”

How Many Ways can the Government Punish You for One Act? A Bunch.

Today the Sixth Circuit decided United States v. Morgan, a case where a drug dealer shot at police who were executing a warrant on his apartment.  He was charged with possessing marijuana with intent to distribute, possession of a firearm by an unlawful user of drugs, and 924(c) for his use of the gun.  The district court enhanced the defendant’s 924(c) count to a 10 year mandatory minimum because he fired the gun, the court applied a 2 year upward departure to the 924(c) count apparently because the defendant fired the gun at the police, and then the court applied a cross-reference on the unlawful firearm possession because firing the gun towards the police constituted attempted murder.  One act equals two charges and three enhancements.

The Sixth Circuit granted some relief by holding that it would be impermissible double counting for the district court to base both the attempted murder enhancement and the 924(c) upward departure on the fact that the defendant shot the gun towards the police.  The Sixth Circuit also took issue with the district court’s application of the attempted murder cross-reference based on the court’s conclusion that the defendant was “able to form the intent” to murder, as opposed to actually finding that the defendant did form that intent.  Under federal law, attempted murder requires that the defendant actually form the intent to kill.

On a final note, the Sixth Circuit made a rather interesting use of the Bostic question.  Normally, if the court asks the Bostic question and the defense attorney does not raise a procedural reasonableness objection, that objection is waived.  In Morgan, the Court held that if the district court raises an issue sua sponte, there is no need to respond to the Bostic question.  The Court reasoned that the purpose of the Bostic question is to bring an issue to the district court’s attention, and if the district court raised the issue on its own, there is no need to bring that issue to the court’s attention.

Begay error correctable under 2255!!

Okay, okay - I know it is an unpublished case, but it is still big news, and helpful.  In Kirk v. United States, the Court remanded a case for resentencing where the defendant complained that he was not an Armed Career Criminal.  The defendant originally pled guilty in 2005, and was sentenced under the ACCA to 190 months.  After Begay came out, Kirk filed a 28 U.S.C. section 2255 petition, alleging that his counsel was ineffective for failing to raise a Begay type claim. 

On appeal, the Government conceded that under Begay and its progeny, one of Kirk's previous convictions did not qualify under the ACCA.  Although the Government did not admit that this constituted ineffective representation, the Government did submit that resentencing under the 0-10 (non ACCA) statutory range was appropriate.

Judges Sutton, Griffin and White agreed.  The Court found that "As a result of his erroneous classification as an armed career criminal, Kirk received a sentence of 190 months, well above the 120-month statutory maximum that would otherwise apply to his felon-in possession conviction. 18 U.S.C. § 924(a)(2). This sentence—one 'that the law cannot impose upon [Kirk]'—undoubtedly represents a miscarriage of justice, making relief under § 2255 appropriate."  The Court remanded for resentencing.

"Extraordinary" Pretrial Publicity No Barrier to Death Sentence

The Sixth Circuit (Merritt, Martin, and Rogers, Circuit Judges) seemed reluctant in its affirmance of Cleveland Jackson's death sentence today, stating "Based on Supreme Court precedent, we are required to affirm."

On January 3, 2002, Jackson and his half-brother, Jeronique Cunningham, shot and killed two children, including a three-year-old girl, during a house robbery. Ohio sentenced Jackson to two separate death sentences -- one for each child. Throughout Jackson's post-conviction proceedings in Ohio, Jackson raised numerous claims concerning the jury voir dire process -- one of which was ultimately successful, and had one of his two death sentences overturned.

The Sixth Circuit focused on Jackson's claims concerning extensive pre-trial publicity. The town where the muders took place -- Lima, Ohio -- was a small, close community. The local newspaper consistently identified Jackson and Cunningham as the sole suspects in the case starting three days after the murder. Every step of the legal proceeding against them was chronicled. Jackson had to wear a bullet-proof vest to his preliminary hearing because tensions in the town were running so high. Additionally, the trial of Cunningham occurred just prior to that of Jackson. The media covered every detail of the trial. Cunningham received the death penalty two weeks before jury selection began in Jackson's trial.

The trial court denied Jackson's motion for a change of venue, and curtailed his attempts during voir dire to ask prospective jurors about their exposure to pre-trial publicity. The Sixth Circuit was clearly troubled by the circumstances of Jackson's trial, particularly his jury, but in the face of AEDPA deference and strong Supreme Court precedent emphasizing the discretion of trial judges to manage voir dire, the Court rejected Jackson's habeas petition.

Career Offenders and Crack Reductions

United States v. Jackson, 678 F.3d 442 (2012). 

Panel of Judges Merritt, Boggs, and Clay.  Judge Boggs dissented.

Decided May 8, 2012.

Rehearing en banc denied on July 9, 2012.  Mandate issued July 17, 2012. 

This one's been around a couple months, but is worth mentioning here b/c the COA just denied rehearing en banc. 

Career offender.  Sentencing was delayed to see if Congress would lower the crack penalties.  Court finally sentenced the defendant on July 16, 2010.  Court did not apply the CO GLs.  Instead, gave the D 150 months.  This sentence was w/i the crack GLs that would have applied but for the CO enhancement. 

While the case was on appeal, the FSA became law.  D sought remand for reduction of sentence. 

Was the sentence based on the career-offender GL or the crack GL?

While the D qualified for the CO enhancement, the focus was the crack GL actually applied.  "To do otherwise is to impose a harsh sentence on defendant when the severity of the old guidelines has been criticized by nearly every stakeholder in the criminal justice system, as well as by Congress."

Remanded to give dist ct the chance to revisit the sentence in light of the new, lower, retroactive crack GLs. 

The crack GLs were "a relevant part" of the sentencing framework. 

The procedural posture of this case makes it a little different---direct appeal.  But the COA explicitly remanded to save the D from having to file a motion for a reduction under 3582(c)(2).   

Judge Boggs dissented.

He finds that the applicable GL range was the pre-departure range: the CO range here.  That range did not change with the FSA, so no reduction in sentence possible.  Also finds that FSA statutory sentencing ranges are not retroactive.  Cites Carradine. 

CP Case and Trial Issues: Rape Shield, Double Jeopardy, and More

United States v. Ogden, Nos. 09-6507/10-5276 (6th Cir. July 17, 2012) (to be published).

Panel of Judges Griffin, Kethledge, and Thapar (E.D. Ky.).

Case arose out of an on-line relationship between a 34-year-old man and a 15-year-old girl.  Persuading a minor to engage in sexually explicit conduct to produce child pornography (CP). 

Defendant went to trial.  On appeal, he argued that he should have been allowed to present evidence of on-line conversations b/t the victim and other men.  He said this evidence was critical b/c it showed other men induced the victim to create the CP.  The COA rejected the arguments and affirmed.

Issue I: Double Jeopardy. 

* We've seen this issue more and more recently.  Possession charge + receipt charge = double jeopardy?  Not here.
* Ct cites United States v. Dudeck, 657 F.3d 424 (6th Cir. 2011). 
* Possession charge here not a lesser included offense b/c receipt charge here involved receipt of images through a computer.  The possession offense sprang from the transfer of the images to a different medium (an external hard drive). 
* Different conduct, so possession not a lesser-included offense of receipt. 

Issue II: Knowingly Receiving Images.

* D argued that to "knowingly receive images" one must know, the minute one receives an image and w/o even having looked at it, that the image is CP. 
* Not so; one need only be aware that "receipt of the illegal images 'is practically certain to follow'" from one's conduct. 
* And there was ample evidence that D here was practically certain that he would receive CP. 

Issue III: Someone Other than D Coaxed Victim to Produce Images.

* Record shows D asked victim to produce images.  She produced pics during her "relationship" with D. 
* Gov did not violate Brady by failing to produce the chat logs (until the day before trial) of victim's conversations with other men.  Logs not admissible b/c of Rule 412, so not subject to Brady. 
* Dist ct didn't abuse discretion by refusing to adjourn trial b/c of this evidence.
* Due process and Constitution don't trump here b/c logs not critical to D's defense.  Enough other evid that D induced victim to engage in sexual conduct and film it.  Rape-shield interests were strong here: protects victims and encourages them to come forward, the COA found.  And victim here a minor, so even stronger interest. 

Issue IV: Restitution.

* D argued that dist ct should have admitted the chat logs at restitution hearing.  D was required to pay most of victim's psychotherapy costs. 
* But nothing in record that dist ct excluded chat logs at hearing. 
* And rules of evidence don't apply at sentencing, so can't assume the dist ct excluded the evidence. 

More confusion on upward variances

In a case decided Friday, United States v. Brinley, 10-5829, the Court seemed to add some confusion to the already perplexing world of variance appellate review.  In Brinley, the defendant received a sentence of 108 months, despite: (1) a Guidelines range of 63-78 months, (2) a Government request for a sentence of 63 months, and (3) the defendant's request for a downward variance based upon mitigating circumstances.  In holding that the 45 month upward variance from the Government's suggested sentence was substantively reasonable, the Court noted that although there must be a "correlation" between the extent of variance and the reasons for the variance, that this was accomplished in the present case, because the district court cited to 3553(a) factors, and "never lost sight" of the Guidelines range.  ??????  It is difficult to determine how the analysis of this case falls in line with other variance reviews.

As a side note, the Court noted that the district court had violated its own local rule, in that the court failed to give pre-sentence notice of its intent to consider an upward variance.  The Court noted that because the defendant was aware of the facts that the district court utilized to impose the upward variance, that the defendant could not prove prejudice under a plain error standard of review.

This case is worth a read, but seems to really confuse the issue of standard of review for an upward variance.  There is no discussion of the axiom "the greater the variance, the greater the explanation required" that seemed to be running through upward variance cases.

SORNA registration tiers matter

United States v. Stock, No. 10-5348, found here. Mr. Stock raises various challenges to SORNA itself, and loses them. He challenges the determination of his base offense level and wins that argument. Because he won that argument and got a remand, the Court only briefly addressed the reasonableness of his way-over-guidelines sentence (though they did smack the government for going overboard at sentencing).

SORNA violators are placed into three tiers - Tier I, Tier II, Tier III - based on the nature of their underlying conviction(s). Base offense levels are 12, 14, and 16 respectively. Mr. Stock's PSR calculated his based offense level starting at the Tier III offender level. Tier III is reserved for the worst crimes. Among other factors, they involve some form of genital contact. The Indiana crimes Mr. Stock had been convicted of did not require genital contact for conviction. The government attempted to show that though Mr. Stock plead guilty to sexual battery, he had actually raped his victims. The district court stated it did not consider the information presented because it was not reliable enough. However, it did still apply the Tier III base offense level.

The Sixth Circuit found Mr. Stock's convictions should have placed him in Tier II and remanded for resentencing. There's an interesting footnote about how to determine what tier is assigned to what prior convictions. Apparently, the Seventh Circuit is using a modified categorical approach similar to that used with Armed Career Criminal determinations.

When the Court addressed the length of Mr. Stock's sentence, it went into some detail about how it was an outlier when compared with sentences of similar SORNA violators. It also used the "more substantial variances require more substantial justifications" analysis largely absent from the Court's recent ruling in United States v. Brinley, No. 10-5829 (discussed in another blog entry).

What is stale? Not this warrant.

United States v. Archibald, No. 11-5488. Opinion is here. Government's appeal of motion to suppress granted below. Warrant evaluated under Tennessee's Rules of Criminal Procedure because it was issued by a state court. Three-day delay between controlled buy and warrant does not make information stale because rules say to get the warrant within 72 hours, which the officers did. Five-day delay in execution of the warrant was OK under the Rules, and there was no evidence of changed circumstances at the address to be searched. Even though officer had just met the prostitute used as a CI for the controlled buy, other officers had used her in the past with positive results. No credibility issue there.

Apprendi applies in juvenile proceedings

United States v. CTH, No. 10-1487. Opinion is here. CTH was 16 when he was busted for possession with intent to deliver heroin. Juvenile sentencing ("official detention") is set by the lesser of five years detention or the maximum of the adult guideline range applicable to an otherwise situated adult. The district court found CTH responsible for 647 grams of heroin and gave him five years official detention. Without that finding, CTH could have received as little as 12 months official detention.

CTH argued that Apprendi should apply to the quantity finding because it, in effect, increased his maximum penalty. The government flailed around a bit in opposition. The Sixth Circuit ruled Apprendi applied and the drug quantity needed to be proven beyond a reasonable doubt.

Extreme literalism in defining "life"

It seems like only a week ago that the Supreme Court held that "youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole."  The "characteristics of youth, and the way they weaken rationales for punishment, can render a life-without-parole sentence disproportionate." The "transient rashness, proclivity for risk, and inability to assess consequences" that are associated with youth fundamentally lessen a "child's 'moral culpability' and enhance[] the prospect that, as the years go by and neurological development occurs, his 'deficiencies will be reformed.'"

Come to think of it, it actually was only a week ago, in Miller v. Alabama.  That case reaffirmed the Court's decision in Graham that such youthful offenders "are less deserving of the most severe punishments" and extended that precedent even to homicide offenses. 

Enter today's decision, Bunch v. Smith.  Eleven years ago, when he was 16 years old, Mr. Bunch participated in a horrific robbery and rape.  When he was sentenced, the judge stated that "I just have to make sure that you don't get out of the penitentiary," because "it would be a mistake to have you back in society."  Because he was a youthful offender who was fundamentally less culpable than an adult and "less deserving of the most severe punishments," this one should go back on habeas review, right? 

Well, no.  You see, the sentencing judge chose to accomplish locking Mr. Bunch up for life by giving him eight consecutive ten-year sentences, followed by nine additional years.  All parties agree that Mr. Bunch will be 95 before he is eligible for release -- a statistically improbable age for most humans, and especially for those in the state prison system.  The Sixth Circuit today appears to have determined that the constitutional principles announced in Graham, Roper, and Miller are entirely determined by how the sentencing judge gives life without parole, not whether. 

The following is speculation, but it seems as though the opinion was written before the Miller decision was released and then revised with a single paragraph at the end to incorporate Miller.  Despite some very helpful language in Miller, the Sixth Circuit did not believe that "youth matters" enough to affect a "virtual life sentence" like the one at issue here. 

Does this opinion dash the hopes of all those serving virtual life sentences?  Is the whole Graham discussion arguably dicta in light of the discussion of Teague?  Will the Supreme Court weigh in once again?  I'd love to hear any thoughts in the comments.  In the mean time, hats off to the Ohio Public Defender's Office for a hard-fought battle.  Hopefully this won't be the end of it.

Statements to a probation officer fall outside the "judicial proceeding" exception to the false statement statute

In United States v. Vreeland, No. 10-1033/1034 (June 29, 2012), the Sixth Circuit held that statements made to a probation officer fall within the reach of 18 U.S.C. § 1001(a), which prohibits making a false statement in relation to a matter within United States jurisdiction. 

The statute explicitly "does not apply to a party to a judicial proceeding, or that party's counsel," for statements made "to a judge or magistrate in that proceeding."  18 U.S.C. § 1001(b). 

Vreeland was charged with making false statements to his probation officer during a routine meeting.  He argued that because the statements pertained to his ongoing supervised release, and because "it was inevitable that the statements would be submitted to the court," the statute's reference to "a judge or magistrate" should be read to include a probation officer, at least in these circumstances.

The Sixth Circuit disagreed, finding that in this setting, "the probation officer's function [w]as more than merely a 'conduit' to the trial court" because the officer was responsible for overseeing Vreeland's compliance and had to exercise independent judgment in deciding whether to seek revocation of Vreeland's supervision.  In this context, at least, the exception to Section 1001 did not apply.  Importantly, however, the court reserved judgment on the question of whether the same would be true of a probation officer in a presentence interview setting.

The court also rejected Vreeland's argument that his statements to the probation officer were compelled in violation of the Fifth Amendment, crediting the district court's factual finding that Vreeland was not in custody and that the probation officer did not threaten Vreeland with arrest or violation of his supervision.

Are restitution awards getting weirder?

Today's unpublished Ciccolini case is another in a disturbing trend of restitution orders that are just, for lack of a better word, weird.  Mr. Ciccolini evidently pleaded guilty to violating tax laws.  The district court got creative in sentencing him, giving him one day of incarceration, imposing a $350,000 fine, and ordering him to pay a whopping $3,500,000 in restitution to an organization that may have been harmed by his actions.

The problem?  The various restitution statutes don't permit restitution for the crimes Mr. Ciccolini committed.  Reversed.  Note, however, that it was the government who originally appealed this restitution order.  We can presume that this is because the government wanted more "time" and less "creativity" in their sentence.  Only Mr. Ciccolini and his accountant can know what he'd prefer. 

Sixth Circuit reverses conviction where district court refused to instruct the jury on the justification defense

In an unpublished decision today, United States v. Clark, No. 11-5347, the Sixth Circuit reversed the defendant's felon-in-possession conviction on the ground that the district court erred by refusing to instruct the jury on the justification defense.

The court explained, "Clark's prosecution stemmed from an evening in Paris, Tennessee, that went terribly wrong." As bad as things turned out, they could have gone much worse.

Clark was at a dance club with his girlfriend when another man grabbed her on the buttocks. Clark confronted the man, a confrontation ensued, and everybody was ushered outside. The man then told his friends to "get the car ready" and approached Clark with his hand inside his jacket. Clark ducked behind a car as shots were fired, one of which whizzed by clark's neck. Clark then ran back inside the dance club, where the DJ lifted his shirt, revealed a gun, and told Clark to take it for his protection. Clark then left the club again, and was trying to flee the area when the police arrived and arrested him.

Clark was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). At his trial, he admitted the above facts and the existence of a prior felony.

 The only issue was whether he was justified to possess the handgun. At the close of the evidence, however, the district court refused to instruct the jury on the justification defense and instead told jurors to disregard testimony relating to self defense or justification.

Explaining that an affirmative defense merely needs to "find[] some support in the evidence and in the law" in order for a defendant to be entitled to a jury instruction, and that "[t]his burden is not a heavy one," the Sixth Circuit reversed.

The court emphasized that Clark merely had to present "some support" for each of the elements of a justification defense, and that his evidence "may even be 'weak or of doubtful credibility.'" Those elements are as follows:

(1) "that defendant was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury";

(2) "that defendant had not recklessly or negligently placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct"'

(3) "that defendant had no reasonable legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm";

(4) "that a direct causal relationship may be reasonably anticipated between the criminal action taken and the avoidance of the threatened harm";

(5) that defendant "did not maintain the illegal conduct any longer than absolutely necessary."

Because there was "some support" for each of these elements, the justification instruction was required.

Supreme Court Update -- FSA, Apprendi, & Crawford

Three significant criminal cases from the Supreme Court this week:

Fair Sentencing Act applies to post-Act sentencing of pre-Act offenders in pipeline cases

The 5-4 decision of Dorsey v. United States, holds the FSA's new mandatory minimums apply to pipeline cases involving sentences for crack cocaine imposed after the Act (August 3, 2010) for pre-Act crimes: "That is the Act's 'plain import' or 'fair implication.'"

The full opinion can be found here.

Apprendi applies to criminal fines

The 6-3 decision of Southern Union Co. v. United States, holds Apprendi v. NJ applies to the imposition of criminal fines.

The full opinion can be found here.

Supreme Court takes a bite out of Crawford

In William v. Illinois, a deeply divided 5-4 decision, the Supreme Court muddied the waters of Crawford, with the narrowest ruling setting forth an unclear distinction between which forensic reports are “formal,” i.e. testimonial, or “informal,” i.e. non-testimonial.

For an in-depth analysis, check out the SCOTUSblog here.

The full 98-page opinion can be found here.

Wal-Mart is a Single Victim

In United States v. Stubblefield, published today, the Sixth Circuit found a two-level enhancement for multiple victims under U.S.S.G. § 2B1.1(b)(2) was procedurally unreasonable because Wal-Mart is a single victim. While multiple false checks were cashed at various Cleveland Wal-Mart locations, each location is automatically reimbursed for the loss by the Wal-Mart Corporation. Only the single corporation suffered actual loss and is therefore the only victim.

The full opinion is available here.

Congratulations to Vanessa Malone here at the Northern District of Ohio!

Supreme Court reverses 6th Circuit’s prosecutorial misconduct test

In prior AEDPA cases, the Sixth Circuit used a two-part test for prosecutorial misconduct claims: (1) whether the prosecutor’s remarks are improper, and if so, (2) whether the remarks were flagrant, which the Sixth Circuit determined using four factors.

In Parker v. Matthews, 567 U.S. __ (June 11, 2012) (available here), the Supreme Court described the Sixth Circuit’s two-part prosecutor misconduct test as mere circuit law, and not appropriate for assessing the "highly generalized standard for evaluating claims of prosecutorial misconduct set forth in Darden v. Waignwright [477 U.S. 168 (1986)] ..."

To determine issues of prosecutorial misconduct, the Supreme Court uses the Darden fair trail test: "a prosecutor’s improper comments will be held to violate the Constitution only if they 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" The Supreme Court explains, "the Darden standard is a very general one, leaving courts "more leeway . . . in reaching outcomes in case-by-case determinations."

District Court Commits No Less Than 5 Errors in Applying the Guidelines

The Sixth Circuit issued an unpublished decision in United States v. Godsey today in which the district court committed a slew of mistakes in applying the guidelines.  The district court incorrectly failed to decrease the offense level by three for acceptance of responsibility, failed to decrease the offense level due to the FSA-based guidelines amendments, incorrectly held that an upward departure due to the insufficiency of the criminal history category disqualified the defendant for safety valve relief, and erred in ungrouping the three counts under USSG § 3D1.2(d).  On top of all that, the Sixth Circuit found that the aforementioned upward departure in criminal history category was improperly applied because it was based on prior non-similar arrests, most of which the district court said it would disregard.  Despite this plethora of errors, the Sixth still denied the defendant’s request to be resentenced by a different Judge.

On or About and Constructive Amendments and Judicial Notice, Oh My!

The Sixth released an interesting published decision today in United States v. Ferguson.  The defendant apparently had thousands of cp pictures on his computer.  He attempted to delete them all on April 4, 2008, but missed 14 of them.  He was then indicted for possession of those 14 images “on or about” April 10, 2008.  The defendant argued that because he thought he deleted the pictures on April 4, he did not “knowingly” possess them on April 10.  The court held that the variance of dates was still close enough to satisfy the “on or about” language in the indictment.

Next, the court held that it could take judicial notice of Shepard documents on appeal in order to determine the nature of a prior conviction.  The defendant argued that the indictment in his state conviction was unhelpful in determining what offense he pled no contest to because Michigan court rules permit a defendant to plead to an offense not charged in the indictment when entering a plea of no-contest.  The court found this argument unpersuasive in this case because other Shepard documents showed that the defendant pled to offenses charged in the indictment.  But it wouldn’t hurt to keep this rule in mind if your are looking at state court Shepard documents from Michigan in future cases.

Sixth Not Convinced by Cop’s Framing of the Facts

In United States v. Johnson, an unpublished case today, the Sixth Circuit, while admitting it was a close case, held by a 2-1 vote that the following facts did not add up to reasonable suspicion to extend a traffic stop once the citation was written:

1) nervousness
2) defendant looked back and forth between the two police officers
3) vehicle had a container of industrial-strength degreaser
4) defendant said he planned to go on a three-night vacation with a woman he had not met in person but vehicle had two plastic bags of clothing instead of luggage
5) rental contract indicated that the vehicle was not supposed to be driven in the state where defendant was stopped or his destination state
6) defendant had a criminal history

The police officer also said the defendant had a “bladed” stance indicating a fight or flight mode, but the majority reviewed the videotape and determined that this was not the case.  Finally, the majority pointed out that the officer interpreted the defendant’s behavior in a way that would make anyone seem suspicious:  “Had Johnson averted his eyes and slouched, he might have been considered evasive. Because he stood straight and maintained eye contact, Officer Duggan considered him aggressive. Johnson simply could not win.”  It turns out Johnson did manage to win, at the Sixth Circuit.

The Rarest of Birds: A Defense Victory in a Non-Capital Habeas Case

According to an empirical study, approximately 0.3% of non-capital habeas petitions are successful. On Tuesday, Vonlee Titlow, a prisoner incarcerated at the Richard A. Handlon Correctional Facility in Ionia, joined this exclusive club. In Titlow v. Burt (10-2488), Judges Gilman and Clay (with Judge Batchelder dissenting) found that Titlow's attorney had been constitutionally ineffective and granted the writ.

Michigan charged Titlow with second-degree murder in 2000. Titlow's first lawyer negotiated a plea agreement for a 7-to-15 year sentence. Titlow's second attorney, however, advised Titlow to withdraw the plea agreement and go to trial. This attorney totally failed to investigate the case before giving said advise. A jury convicted Titlow and she was sentenced to 20-to-40 years. A majority of the panel found this to constitute ineffective assistance under Strickland. Judge Batchelder did not think that the attorney had been the primary cause of Titlow undoing the plea, and so dissented.

I Demand Satisfaction: New Mexico Aggravated Assault (Deadly Weapon) Not Crime of Violence Under Guidelines

By this point, you might think that our Court had already determined every possible prior conviction that constitutes of a "crime of violence." You would, of course, be wrong. Until this week, the Sixth Circuit had not had opportunity to consider a New Mexico conviction for aggravated assault (deadly weapon).

In United States v. Rende-Mendez (10-2509), the Court decided that, notwithstanding its name and a dissent by Judge Griffin, New Mexico aggravated assault (deadly weapon) is not a crime of violence under U.S.S.G. Section 2L1.2. The court applied the familiar categorical approach and noted that the New Mexico statute defining the offense could be satisfied by "the use of insulting language toward another impugning his honor, delicacy or reputation." N.M. Stat. Section 30-3-1(C). Such actions, the Court reasoned, could not be considered a crime of violence.

Court Adopts Two-Pronged Heller Analysis, Rejects Second Amendment Challenge to "Dangerous Weapon" Enhancement

In 2008, the Supreme Court in Heller held that the Second Amendment protects an individual's right to keep and bear arms without regard to Militia service. That right, however, is not unlimited. Post-Heller, lower courts have struggled to turn the text of the decision into a workable approach for resolving Second Amendment challenges. Today, in United States v. Greeno (10-6279), the Sixth Circuit adopted the two-pronged test utilized by the Third, Fourth, Seventh, and Tenth Circuits.

Under the first prong, the court asks whether the challenged law burdens conduct that falls within the scope of the Second Amendment right as it was understood at the relevant time of ratification (1791 for the Bill of Rights, 1868 for the Fourteenth Amendment). If the law does not, the inquiry ends and the challenge fails. If, however, the government cannot establish that the conduct falls outside of the scope of the right, then the court proceeds to the second prong of the test.

Under the second prong, the court applies the "appropriate" level of scrutiny to the strength of the government's justification for restricting or regulating the exercise of Second Amendment rights. The definition of "appropriate" is not defined.

Mark Greeno was convicted of conspiracy to distribute methamphetamine and received the standard two-level enhancement under Section 2D1.1(b)(1) of the U.S. Sentencing Guidelines for possession of a dangerous weapon. Greeno argued that the enhancement violated his post-Heller Second Amendment rights.

The Court announced its adoption of the two-pronged test and dismissed Greeno's challenge without reaching the second prong. The Court reasoned that, even in 1791, the Second Amendment only protected an individual's right to possess a weapon for lawful purposes. The Court did not reach the second prong and so did not weigh in on what level of scrutiny it might apply.

Take-aways from this case: (1) adoption of the two-pronged test; (2) under the first prong, the burden appears to be on the government to prove that the activity is outside of the scope of the Second Amendment as it was historically understood; (3) Second Amendment is unlikely to be of help to criminal defendants.

Good CP Case

United States v. Aleo, Nos. 10-1569/1570/1833 (6th Cir. May 15, 2012). 

Panel of Judges Boggs, Rogers, Sutton.  Judge Sutton also issued a separate concurrence. 

D sentenced to 720 months for producing, possessing, and transporting CP.  GLs were 235 to 293 months. 

Ct finds no justifications for the upward variance and remands. 

D's counsel was sanctioned $2,000 (dist ct's inherent power to sanction) b/c of motion to compel gov to make a formal motion regarding any victim who wanted to speak at trial under the Crime Victim Rights Act (name victim and provide preview of statement).

No evidence motion filed in bad faith, so sanction reversed. 

Notes on sentence:
* Psychotherapist said D met definition of pedophile.
* Risk assessment score indicated low risk to re-offend sexually.  Low risk of violence. 
* Sentence was procedurally reasonable.
* COA compares sentence to other sentences for similar conduct.  See slip opinion at 14 to 16. 

Notes on sanction:
* Gov had recommended against sanctioning the attorney. 
* Counsel had cited a defense-community article on the issue.  Check out footnote 11.
* COA questions whether inherent authority to sanction even exists in a criminal case like this one.  See footnote 13.  Suggests Fed R Crim P 42 may be only option for sanctions.  COA doesn't answer question b/c doesn't need to do so.  No basis for sanctions under either approach. 

Judge Sutton's concurrence:
* Skeptical of dist ct's inherent authority to sanction.  Looks instead to 18 USC 401 and Fed R Crim P 42.  Contempt power only option in crim cases. 

En Banc Court Reverses Grant of Habeas Corpus

Gagne v. Booker, an en banc case published yesterday, has a lot going on. The 70-page decision includes a plurality opinion, two concurrences, two opinions concurring in the judgment only, and two dissents. The case is instructive on not only the legal issues it addresses – among them, federal habeas review, the admissibility of evidence, and the confrontation clause – but also on the motivations and allegiances of the judges that comprise our Circuit.

A Michigan jury convicted Lewis Gagne of two counts of first-degree criminal sexual misconduct. The victim, P.C., was Gagne’s ex-girlfriend. She claimed that on July 3, 2000, Gagne and his friend Donald Swathwood had forcibly raped and sodomized her. Gagne claimed that the three of them had had consensual group sex.

As part of his defense, Gagne wanted to put on evidence that (1) Gagne, P.C. and another man (not Swathwood) had on a prior occasion engaged in group sex; and (2) that P.C. had on a prior occasion offered to engage in group sex with Gagne and Gagne’s father. The court denied admission of the evidence under Michigan’s Rape Shield Law. Michigan’s Rape Shield Law, like that of many states, bars most evidence of specific instances of a victim’s past sexual conduct. There is an exception for evidence of the victim’s past sexual conduct with the accused, but that exception applies “unless and only to the extent that the judge finds that the [] proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.”

Like the Sixth Circuit many years later, Michigan appellate judges struggled to apply the Rape Shield Law to this fact pattern. The material fact at issue was whether P.C. consented. Part of the proffered evidence concerned P.C.’s past sexual conduct with Gagne, but part of it also concerned non-defendants. Michigan judges conceded that the Rape Shield Law did not appear to have contemplated the complications arising from group sex. Ultimately, Michigan decided that the Rape Shield’s protection of P.C. outweighed Gagne’s right to put forth a complete defense, and affirmed Gagne’s conviction.

On federal habeas review, the district court granted a writ of habeas corpus, finding that the exclusion of the testimony regarding the group sex and the offer of group sex with his father had violated Gagne’s Sixth Amendment rights to a fair trial, to confront witnesses against him, and to present a complete defense. The Sixth Circuit affirmed and later granted rehearing en banc.

The en banc panel that heard Gagne’s case consisted of sixteen Sixth Circuit Judges. Every active judge except Donald, the most recent appointee, participated, as well as Senior Judge Norris, who had been part of the original three-judge panel to hear the case.

The decision of the court was penned by Judge Batchelder and joined by six members of the well-established conservative bloc of the Sixth Circuit: Judges Boggs, Gibbons, Sutton, Cook, McKeague, and Griffin. Judge Kethledge was conspicuously absent.

Judge Batchelder’s opinion reversing the granting of the writ of habeas corpus is grounded in the “objectively unreasonable” requirement of AEDPA. The analysis concludes:

The “group sex” at issue in this case involved P.C.’s prolonged sex (oral, vaginal, and anal) in various positions with both men concurrently, spankings, and repeated vaginal and anal penetrations with multiple sex toys, vibrators and a wine bottle, resulting in vaginal bleeding and bruising. To be sure, jurors might find this behavior outlandish, aberrant, abnormal, bizarre, disgusting, or even deviant and, therefore, find it incredible or inherently unbelievable that P.C. would have consented to it. And it is not unreasonable to surmise that those jurors would be more likely to find consent if they were told that she had engaged in – and offered to engage in – group sex at least two other times in the past. But, again, that is not the question. The question is whether the Michigan Court of Appeals was “objectively unreasonable” in rejecting this argument. Considering the general antipathy for propensity evidence, that State’s established interest in rape-shield laws, and the Michigan Supreme Court’s repeated rejection of this argument, we cannot say that the decision in this case was “beyond any possibility for fair-minded disagreement.”

The primary dissenting opinion was authored – surprisingly some might say – by Judge Kethledge. Ordinarily no fonder of habeas relief than Judge Batchelder, Judge Kethledge wrote a forceful and meticulous opinion. Not only did Judge Kethledge painstakingly detail why the evidence of past group sex might have been crucial to Gagne’s defense, he also took AEDPA by the horns in a way that would make any federal defender proud. Judge Kethledge went to great lengths to find clearly established Supreme Court precedent and to connect the dots from that precedent to this case. From Chambers and Crane, Judge Kethledge distilled the principle that a court cannot use a “flimsy” evidentiary rationale to exclude evidence that is critical to resolving a credibility dispute. In Olden, Judge Kethledge found a right to confrontation in a rape case “that boiled down to a credibility contest in which the sole issue was consent.” In light of this precedent, Kethledge argued that no reasonable jurist could have excluded the proffered evidence. He was joined by Judges Martin, Norris, Rogers, and Stranch.

Judge Griffin joined the plurality and also concurred to express deep concerned about the dissent’s treatment of “propensity” evidence. What concerned Judge Griffin the most was the right of the victim not to have her past sexual actions used against her.

Sutton also joined the plurality. He concurred expressing his agreement with the other concurrences, and also, somewhat curiously, added: “the combination of AEDPA and [Michigan v.] Lucas precludes me from joining Judge Kethledge’s otherwise-forceful dissenting opinion.”

In a telling opinion, Judge Moore concurred in the judgment only. Judge Moore agreed with the result of the plurality, but not its method of analysis. In fact, Judge Moore believed that “the dissent by Judge Kethledge has the better exposition of the general constitutional principles at issue in this case and how they should be considered on habeas.” In short, Judge Moore thought that the plurality gave the state more deference than it was due. She agreed with the quantum of deference afforded by the dissent, but disagreed with its conclusion. In many ways, Judge Moore’s opinion is most emblematic of the Court as a whole, representing the most balanced view of all its opinions. Judge Cole joined Moore’s concurrence.

Judge Clay also concurred in the judgment only.  Like Judge Griffin, Clay was most concerned with the probative value of the evidence, which he noted was likely hearsay. Like Judge Griffin, Judge Clay bucked at the inference that a woman who consents once to group sex is more likely to consent to it again in the future.

Judge White also concurred in the judgment only. Like Judge Moore, Judge White did not like the plurality’s approach and preferred the dissent’s “legal analysis” and “application of clearly established federal law.” Judge White, however, did not read the record the way the dissent did, and so disagreed with its conclusions.

Judge Martin joined Judge Kethledge’s dissent and also wrote a separate dissent. Judge Martin expressed that he was “disappointed in the majority’s decision to frame this evidentiary issue as a protection of Michigan’s rape shield statute.”  Judge Martin wanted to refocus the question as one of evidence.

So, what is to be taken away from this case? First, there is no majority opinion even though the overall tally was 11 to 5 in favor of reversal. In terms of the merits of the claim, it was not a particularly close case, and arguably not a very important decision in terms of precedential value. A majority of the Judges seemed to agree that it was not unreasonable to use the Rape Shield Law to exclude the proposed evidence.

But in terms of the politics of the court, especially with respect to AEDPA, this case is fascinating. Attorneys who practice in the Sixth Circuit are always happy to see an en banc decision that does not break down strictly according to the liberal/conservative dichotomy. Several judges arguably “broke ranks” in this decision and it is revealing to consider why. Judge Kethledge, most obviously, broke ranks from the conservative bloc (and from his tendency to deny habeas petitions) and exerted great effort attempting to clear the AEDPA hurdle. His effort earned him the praise of a number of his colleagues even if they did not join him. Attorneys drafting habeas petitions in the future would do well to pay close attention to the way in which he marshaled Supreme Court precedent (although beware of the plurality’s Footnote 19 and Judge Kethledge’s response in Footnote 2 – more on this below).

Judges Moore, Clay, White, and Cole did not vote with their usual “liberal” allies. But they did not join the plurality either. Their concurrences – especially Judge Moore’s – betray a tension between their view of the merits of the case and their view of AEDPA. Judge Moore does not believe the merits of this case warrant the granting of a writ, but she will not join the plurality’s extreme view of AEDPA deference. Judge Moore wants to protect her ability to grant a writ of habeas corpus in the future if she found herself feeling as strongly about the merits as Judge Kethledge did in this case. Judge White’s somewhat enigmatic concurrence can be read similarly.

For those who practice habeas corpus law, there is an important little argument between Judges Batchelder and Kethledge, played out in a couple of footnotes. (Everyone else will be put to sleep and can skip this paragraph.) The fight stems from Judge Kethledge’s (noble) attempt to hang his argument on the “contrary to” hook of 2254(d)(1), rather than on the more common  “unreasonable application” hook. Again, federal defenders will understand Judge Kethledge’s bind all-too-well; Michigan never identified any of the cases he wants to apply. Footnote 19 of the plurality opinion rejects Kethledge’s reasoning (although does call it “clever”) and essentially states that the “contrary to” clause has been gutted and only applies when the facts of the instant case are identical (not analagous) to an old Supreme Court case. Judge Kethledge responds in a footnote of his own, espousing a slightly more generous reading of the “contrary to” clause. Since Williams v. Taylor, the contours of the “contrary to” clause continue to evolve in our court, but it is good to know that Judge Kethledge at least believes it still has some teeth.

Overall, the AEDPA analysis of Batchelder and Kethledge reveal, for approximately the infinity-ith time the malleability of the AEDPA standard. There can be no other explanation than that “clever” judges are able to bend AEDPA at their will. If a judge really, really believes in the merits of a claim, he or she can make the state court’s opinion run afoul of AEDPA. And if a judge can live with the state court, he or she will have no problem finding the state court’s decision “not unreasonable”.

But to end on an optimistic note, this case is in some ways refreshing. The plurality and the dissent genuinely engage with each other, rather than devolving into the typical split in habeas cases: one side addresses only AEDPA and the other only the merits. Judges Kethledge and Moore probably deserve the most credit for their independent and courageous opinions. For now, let us hope this case marks the beginning of a less polarized Sixth Circuit.

Career Offenders and the Crack Reduction

I figure phones will be ringing off the hook tomorrow in some offices, so let me give you the fast and dirty breakdown of United States v. Jackson, 10-3923. (found here).

On its face, it appears to allow 3582(c) crack guideline reduction petitions where the defendant was found to be a career offender. HOWEVER, the devil is in the details.


Jackson pled guilty in June 2009. He was found to be a Career Offender. The District Court delayed his sentencing for over a year, anticipating Congress was about to pass a new crack law. It finally decided it could delay no longer, and sentenced Jackson on July 16, 2010. Jackson filed a timely notice of appeal. The FSA, of course, was passed on August 4, 2010. At Jackson's sentencing, the District Court discussed at length the horrible disparity between the crack and powder guidelines. The District Court clearly wanted Jackson to have a more just guideline. The District Court did give a 38-month downward variance from the career offender guideline smack into the middle of the then-applicable crack guideline.


Writing for the majority (J. Boggs dissented), Judge Merritt stated, "When the original sentencing judge decides to vary from the career offender guideline range to some other range, it is fair to say that the sentence imposed is 'based on' the adopted range and not the career offender range." He discussed the instruction in Freeman v. United States, 131 S.Ct. 2685 (2011), to "isolate whatever marginal effect the since-rejected Guideline had on the defendant's sentence. Working backwards from this purpose, 3582(c) modification proceedings should be available to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence." Judge Merritt rule the crack cocaine guidelines were "clearly 'a relevant part of the analytic framework' used by the district court."br/br/Defenders may want to review their crack career offender cases to see if any might be due relief. This will likely involve review of the transcripts from the sentencing hearing.