Red Dog

Federal criminal defense, blitzes and otherwise, in the Sixth Circuit and beyond.

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Monday, February 27, 2012

Really Exciting News from the 11th Cir. re Encrypted Files



In Re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011: United States v. Doe, Nos. 11-12268 & 11-15421 (11th Cir. Feb. 23, 2012) (published).

Panel of Judges Tjoflat, Martin, and Hill.

CP case. 

Appeal of a civil contempt order.  D got subpoena to appear before grand jury and produce unencrypted contents of hard drives.  D told US Attorney that he would invoke his Fifth Amendment privilege against self-incrimination and refuse to comply with the subpoena.  US Attorney asked the district court for an order granting D immunity and requiring him to respond to the subpoena. 

The immunity would extend only to D's production of the unencrypted contents---not the gov's derivative use of the contents.  The district court issued the order.  D appeared before the grand jury and refused to decrypt the hard drives.  D invoked his Fifth Amendment rights (D was w/o counsel at these times).  D also claimed he could not decrypt the material.  The district court adjudged the D in contempt and incarcerated him. 

Authorities had gotten the hard drives after investigating CP allegations and tracing them back to the D and a hotel room in California.  Law enforcement got a warrant and seized all digital media and a number of encryption devices/codes to access the media.  Forensic examiners, however, were unable to view some of the material, which led to the proceedings at issue. 

D feared that his decryption of the materials would show he, and not another person, had placed the materials on the digital media and encrypted the materials. 

Conclusions:
* D's decryption and production of the hard drives' contents would trigger Fifth Amendment protection b/c it would be testimonial; such protection would extend to the gov's use of the materials. 
* Material that is a link in the chain that leads to incriminating evidence is enough to invoke the Fifth Amendment. 
* The files themselves are not testimonial.  But the actual contents of the drives were not the issue.  The issue was the act of production when that production explicitly or implicitly conveyed a statement of fact. 
* "Foregone conclusion" doctrine: the existence and location of papers are foregone conclusions, so the possessor of the documents adds little by conceding that he/she has the papers.  Not testimony then---just surrender---so no constitutional rights involved.  This doctrine does not apply when the gov does not know of the existence of documents beyond suspicion
* Test: "whether the government compels the individual to use 'the contents of his own mind' to explicitly or implicitly communicate some statement of fact." 
* An act of production is not testimonial if 1) the gov merely compels some physical act (no use of the mind), or 2) if the "foregone conclusion" doctrine applies b/c the gov "can show with 'reasonable particularity' that, at the time it sought to compel the act of production, it already knew of the materials." 
* Ct held that the act of decryption and production of the contents of the hard drives would implicate the Fifth Amendment.  The act would be testimonial---not merely physical and the factual communications associated with the decryption/production were not foregone conclusions. 
* Decryption requires use of the mind: tantamount to testimony that D knew of the materials, possessed/accessed them, and could decrypt them. 
* No "foregone conclusion" here b/c gov could not show it knew whether any files actually existed or the location of such files.  Gov could not even show it knew D could access the encrypted portions of the drives. 
* Encryption alone does not mean a person is trying to hide something. 
* Immunity granted here insufficient.  "Use and derivative-use immunity establishes the critical threshold to overcome an individual's invocation of the Fifth Amendment privilege against self-incrimination."  Gov did not give such immunity here.  So D could not be compelled to decrypt the drives. 
* D "properly invoked the Fifth Amendment privilege."  His refusal to decrypt the hard drives w/o sufficient immunity was justified.  District ct erred in adjudging him in civil contempt.  Dist ct's judgment reversed. 

Two CP Decisions. . . .

United States v. Ferguson, No. 10-3070 (6th Cir. Feb. 27, 2012) (published).

Panel of Judges Kennedy, Gibbons, and Kethledge.

CP case.  D appealed the special conditions of his supervised release.  Also appealed denial of suppression motion, and claimed ineffective assistance of counsel (counsel's failure to preserve suppression issue for appeal). 

D had been residing in a residence that was in disrepair (he did not have a property interest in it and only stayed there part-time).  Police told of possible CP (contacted by another police department).  Police went to the residence and arrested the D for trespassing.  Searched home (to ensure no other trespassers present).  Seized D's property; said home scheduled for demolition and evidence could be destroyed.  Detective got a warrant and examined the electronic media.  Found CP. 

The district court denied D's motion to suppress: D did not own the home, had no lawful possession of it, had been convicted of failing to keep it sanitary, and had been ordered to stay away from it.  Home was scheduled for demolition. 

D pleaded guilty.  Appellate waiver in plea agreement.  Agreement detailed several conditions the government would seek for supervised release.   

District court imposed a sentence of 30 months and 10 years of supervised release.  Among the conditions of supervised release were: 1) ban on contact with minors; 2) ban on contact with people with sexual interests in minors; 3) no jobs/residence/recreation and such involving minors; 4) ban on loitering within 100' of a school/playground frequented by minors; and 5) no on-line access w/o probation's approval. 

Ineffective-assistance-of-counsel claim, based on failing to preserve right to appeal suppression issue, should wait for a 2255.  Record not developed on direct appeal.  Unconditional plea means no review of the denial of the motion to suppress here.  As to the conditions of supervised release, the D waived his right to appeal them.  Even a lack of notice of one of the conditions did not jump the waiver hurdle.  A general reservation of the right to appeal a punishment in excess of the statutory max does not preserve the right to challenge SR conditions. 

*****

Next there is United States v. Robinson, No. 09-1959 (6th Cir. Feb. 27, 2012) (published).

Panel of Judges Cole, Rogers, and Sargus (S.D. Ohio). 

CP case.  GLs of 78 to 97 months.  District court gave the D one day in custody and 5 years of SR.  Sentence vacated as substantively unreasonable

Psych report indicated that the D was a low risk for recidivism (and other positive factors).  D was cooperative, lacked criminal history, went to counseling, and had a painful back condition. 

The government appealed the one-day sentence.  The court of appeals looked at Gall and cited a portion about ensuring that justifications for a variance are sufficient to support the degree of the variance.  The appellate court found that courts struggle with CP cases and cited a Sentencing Commission statistic that variances occur in 60% of the cases. 

The sentence was procedurally reasonable, but failed substantively.  Sentence based excessively on the issue of recidivism (low risk for hands-on offenses); this case was about CP---not child molestation.  D's employment history, age, and debilitating back condition were "discouraged" factors under the GLs.  Even post-Booker, a sentencing court "should take into account 'the 'discouraged' status of these factors.'"  The other 3553(a) factors received too little attention from the district court.

The court of appeals cited Bistline, that CP case we included in a post on January 14, 2012.  The COA recognized that the CP GLs are controversial "and are currently under review by the Sentencing Commission."  Court acknowledged that "In the computer age, we have some doubt that the number of pictures alone captures the gravity of the crime of possession of child pornography."  But this D collected his images over an extended period of time and paid to do so. 

The court of appeals distinguished United States v. Stall, 581 F.3d 276 (6th Cir. 2009), and United States v. Prisel, 316 F. App`x 377 (6th Cir. 2008), both of which involved one-day sentences and involved plain-error review. 

"[E]xtraordinary circumstances may justify extraordinary variances or departures."  This finding seems to follow up on some of the problematic issues in Bistline


Thursday, February 23, 2012

Crack Reductions: Darn It!

(This picture is just so random!)
United States v. McKinney, No. 11-1439 (6th Cir. Feb. 23, 2012) (unpublished). 

Chief Judge Batchelder, and Judges Norris and Stranch. 

District court denied a crack reduction under 18 U.S.C. 3582(c)(2).  Court of appeals affirmed this denial.

2004 conviction for guns and drugs.  As part of the plea deal, the government agreed to dismiss a count that would have carried a consecutive thirty-year mandatory sentence (for having a destructive device).  In '04, highest base offense level was 38 (more than 1.5 kilos of crack).  That's what this defendant got.  Ended up with a total offense level of 37, criminal history category IV, and range of 292 to 365 months. 

Defendant did not object to the original PSR.  District court sentenced defendant to 292 months + 120 months (concurrent) on gun count.  Sentence fell to 235 months after a Rule 35. 

After the first round of crack amendments, the defendant sought a reduction in sentence.  Probation did not recommend a reduction, finding that the PSR established the defendant was responsible for more than 4.5 kilos of crack, the new threshold for level 38.  The district court (who was not the original sentencing judge) found that the only original determination was that the defendant was responsible for at least 1.5 kilos.  That quantity would put the defendant at base offense level 36 under the first set of amendments. 

The district court requested supplemental briefing regarding how the court should exercise its discretion.  The government moved for a second Rule 35 reduction.  The case was reassigned and returned to the original sentencing judge. 

The original sentencing judge ruled against a reduction under 3582(c)(2).  Looked to the original sentencing record and the PSR, to which the defendant had not objected.  Court found that the defendant was responsible for more than 4.5 kilos.  Court found that this conclusion was not inconsistent with the original findings b/c 4.5 kilos is in excess of 1.5 kilos, the only original determination.  The court did grant the Rule 35 and reduced the sentence to 214 months. 

The court of appeals concluded that:
* The defendant had accepted all of the facts in the PSR b/c he did not object to them. 
* The PSR confirmed that the defendant was responsible for at least 6 kilos of crack. 
* United States v. Moore, 582 F.3d 641 (6th Cir. 2009), said that a new factual finding of a higher quantity is not inconsistent with an original finding of "at least" 1.5 kilos. 

Wednesday, February 22, 2012

Good Reminder re Notices of Appeal

Sorry for the long break in posts.  Trial. . . .

Today, the Circuit gives us a good reminder to stay on top of those notices of appeal (NOA).  Jackson v. Chandler, No. 10-6060 (6th Cir. Feb. 21, 2012) (unpublished).  (It's still listed on "today's opinions.")

Judges Merritt, Cook, and Cox (E.D. Mich.).  Per curiam. 

Habeas action from state court.  Petitioner filed his 2254 in 2008, challenging his 2002 murder conviction.  The district court dismissed the petition as untimely.  Also found that counsel's error in calculating the timeliness of the petition did not call for equitable tolling.  The district court entered its judgment on March 26, 2010.  Deadline to file notice of appeal was April 26, 2010.  Not filed till April 29, 2010.  Court of appeals dismissed as untimely.  While the appeal was pending, the petitioner moved the district court for an extension of time in which to file the appeal

Counsel claimed she forgot to tell her assistant to overnight the NOA.  So it allegedly got to the court a day late.  In reality, however, the NOA was three days lateFederal Rule of Appellate Procedure 26(c) does not give the three extra days for NOAs.  Court cites Ultimate Appliance CC v. Kirby Co., 601 F.3d 414, 416 (6th Cir. 2010).

The district court denied the motion, finding that counsel's oversight did not constitute excusable neglect.  The petitioner appealed. 

Under 28 U.S.C. 2107(c), district courts have only limited authority to extend the time limits for filing an NOA.  A district court may extend for excusable neglect or good cause if the motion is filed within thirty days of the expiration of the prescribed time.  Federal Rule of Appellate Procedure 4(a)(5) governs.  Findings of excusable neglect are "extraordinary."  And clients are held accountable for their attorneys' actions/omissions.  Attorney inadvertence usually does not meet the standard for excusable neglect.  Being busy is not excusable neglect.     

The court of appeals affirmed.

Remember, Sixth Circuit Rule 101(a) says trial counsel in criminal cases must continue to represent a client on appeal until the Circuit explicitly relieves the attorney.  We're on the case till we're off!  And the Court reminds us here that there's no excuse for filing NOAs late!

Friday, February 3, 2012

More Double Jeopardy and CP

Lots of action this week in the Circuit.  It's been really busy, so I can't post on everything, but there are good posts on the Sixth Circuit blog:

www.circuit6.blogspot.com.

And here's more on the child-pornography double-jeopardy issue that follows up on Dudeck (September 14 post).  The sentencing discussion also follows up a little on Bistline (January 14 post).  United States v. Hutchinson, No. 10-4603 (6th Cir. Feb. 1, 2012) (unpublished).  Panel of Judges Moore, Clay, and McKeague. 

Background:
* 188-month sentence for CP receipt/possession/distribution.
* D had been trading CP on-line.
* 10,405 images + 61 videos. 
* Guilty plea.
* Total OL 37.  Crim hist category II.  Range of 235 to 293 months.
* 240-month stat max. 
* Sentencing ct found that reduced range of 151 to 188 was sufficient. 

Issues:
* D took issue with application of number-of-images enhancement.
* D claimed his sentence violated double-jeopardy principles.

Court agreed on the double-jeopardy issue and vacated in part and remanded

Discussion:
* D objected to the number-of-images enhancement
* Even discounting the duplicate images, there were 9,382 images.  That number was well over the 600 needed for the enhancement
* The number-of-images enhancement does not violate separation of powers.
* Congress had a "uniquely active role" in crafting the CP GLs.  Intent to deter and punish.  Citation of Commission's History of the Child Pornography Guidelines from October 2009.  Congress retained ultimate authority over fed sentencing despite delegation to Commission.  This authority from earlier case law was binding on this panel. 
* Double-jeopardy claims reviewed for plain error
* Double-jeopardy violation b/c allegations in indictment supported by same conduct.  The defendant "possessed only those materials he had already received via online trading."  And "[t]he fact that he went on to distribute duplicates of some of those images does not mitigate the fact that the possession charge was a lesser-included offense of receipt."  Separate and distinct conduct did not form the basis for each offense.  There was plain error. 
* The error was plain even though the district court decided the case before the definitive Sixth Circuit case was published.  There was sufficiently analogous Supreme Court precedent at the time to make the error plain. 
* While the sentences were to run concurrently, so the only practical difference based on the double jeopardy violation was the amount of the special assessment, the special assessment was enough to affect the D's substantial rights
* Conviction for lesser included offense should be vacated. 
* Also there could be a violation if 2252(a)(2) and 2252A(a)(2) convictions not based on different images.  Remand for further fact-finding.