6th Cir Policy on e-Gadgets

The 6th Cir. has a new policy on electronic gear.  Released last month:

http://www.ca6.uscourts.gov/internet/court_calendars/documents/Electronic_Device.pdf

More on the CP Restitution Front

We've discussed CP restitution in the past (see Dec. 7, 2012 post).  Sixth Cir. continues on its trajectory of requiring causation. 

 

In United States v. Gamble, Nos. 11-5394/5544 (6th Cir. Feb. 27, 2013) (published) (panel of Judges Rogers, Kethledge, and Marbley (S.D. Ohio)), the Court confirmed that "[i]n order for restitution to be granted under 18 U.S.C. § 2259, the Government must show that the costs incurred by the victim were proximately caused by the defendant’s offense. This conclusion is supported both by our precedent and by an independent reading of the statute."

 

COA looked at 18 USC 2259, which governs mandatory restitution in child sex cases.  COA also looked back at United States v. Evers, 669 F.3d 645 (6th Cir. 2012), in which the Court held that all restitution awards under 2259(b)(3) require the gov to show proximate cause.

 

The 6th Cir. concluded:

 

"Because the district courts did not require a showing of proximate cause between the losses and the defendants’ offenses, and this circuit’s case law requires such a showing, the cases must be remanded so that this analysis can take place. On remand, moreover, the district court must reconsider the extent to which the defendants must pay restitution where they share responsibility for Vicky’s injuries with hundreds of other child pornography viewers."

 

Defense counsel had objected in the dist ct, arguing that many of the alleged damages to "Vicky" occurred before the pictures were found in the defendant's possession.  Argued causation could not be shown.  Also argued that including "future costs" was speculative. 

 

The district court found that the evidence showed a total loss amount for Vicky of $1,002,766.85, and ordered restitution in that amount, an amount that was to be reduced as other money was collected.

 

The COA, however, affirmed that "[t]he proximate cause requirement recognized in Evers consists of (1) a cause-infact requirement—i.e., a showing that the defendant’s conduct actually caused the victim’s losses—and (2) a requirement that the cause be proximate."

 

The COA gave strong, concise support for its reading of 2259(b)(3)(F): that section "states that the victim’s losses include costs incurred for 'any other losses suffered by the victim as a proximate result of the offense.' The plain meaning of this phrase in context indicates that it is equally applicable to the previous five subsections listing specific costs like medical services and lost income. The 'any other losses' catchall is meant to close loopholes. There is no reason that the catchall would be limited by a proximate cause requirement while the specified categories of losses would not."

 

Also, "[i]n the definition of 'victim,' to whom restitution is owed, the statute states that the victim must be “harmed as a result of a commission of a crime under this chapter.' . . .  As other circuits have pointed out, 'this language implies that the government must establish a causal connection between the defendant’s offense and the harm to the victim.'"

 

Cause-in-fact and proximate cause required.  Proximate cause requires reasonable foreseeability. 

 

On the issue of joint-and-several liability, the COA saw a link with proximate causation: "The question of joint and several liability bears some relation to whether the causation is proximate, however, because one of the policy strands in the proximate cause analysis is the avoidance of unlimited liability for a single action."

 

At this point, the COA discussed limiting the losses attributable to Old Lady Leary's cow and the lantern in the shed that led to the Chicago fire.

 

Apportioning restitution, the COA concluded, makes more sense: "liability is to be apportioned in a reasonable way that leads to full restitution, without eviscerating the causation requirement."

 

Interesting note: "Vicky" seems to have "collected almost half of the $1.2 million in losses that she has claimed to date."   

 

The COA explained that a defendant generally cannot cause harm prior to his or her offense date. 



The gov proposed a system for apportionment.  The COA saw this system as a possible solution; the Court did not mandate its adoption, but found it consistent with the statute.  The Court left the issue to the dist ct on remand.  Remand was to allow for consideration of new evidence and argument. 

One defendant argued his prison sentence was substantively unreasonable.  The Court rejected this argument.  He got 82 months, which was within the GLs. 

Judge Kethledge concurred in part and in the judgment:

* He believes in "a more flexible and open-ended determination of each defendant's share" of the alleged losses.

* To him, "an inquiry into whether a particular defendant actually caused a victim’s generalized losses—by which I mean losses resulting from the actions of many violators of the child pornography laws—is an inquiry into the unknowable."

 

* He admonished that "[c]asting legal questions in such terms is only a hindrance to clear thinking; and thus the choice before us is either to abandon enforcement of the statute in these cases, or to adopt a different rule of actual causation for this context. I would take the latter approach and adopt the First Circuit’s rule of aggregate causation (though only for purposes of determining actual cause)."
 

* He cautioned that "nothing in the statute appears to support multiple full recoveries for the victim. And multiple recoveries would be compelled under an approach where multiple defendants are each found to cause all of the victim’s losses.

 

* Agreeing that joint-and-several liability is impractical, he approved of apportioning losses, but recognized the problems with such a task.  His approach would be flexible.  He "would case the issue in terms of the defendant's comparative moral fault."  Various factors to consider. 

Great CP Result: Sentence Substantively Unreasonable

United States v. Melchor, No. 12--1300 (6th Cir. Feb. 14, 2013) (not for publication).

Panel of Judges Cole, Griffin, and Gwin (N.D. Ohio).

360-month sentence.  GLs were 210 to 262. 

Receiving CP.

COA vacated and remanded: sentence was substantively unreasonable.

The defendant was 36 years old.  Met a 12-year-old girl on-line and became Facebook friends.  They had on-line contact that was sexual in nature (sexual discussions and such).  Defendant was a registered sex offender.  The mother of the girl discovered the relationship and contacted police.  Police executed a warrant and discovered CP.  The defendant confessed an interest in young girls.  The defendant pleaded guilty to receiving CP.  The gov agreed not to charge him with the conduct related to the 12-year-old girl. 

Total offense level 35.  Enhancement b/c of "pattern of activity": prior exploitation of a minor.  PSR recommended sentence of 480 months.  Gov recommended GL sentence.  Defendant argued for a sentence below the GLs, or at least within them.  Dist ct gave 360-month sentence.  Dist ct agreed with PSR that GLs did not account for the behavior with the 12-year-old girl and that the defendant was not amenable to rehabilitation.

Points:
* Potential for recidivism may provide grounds for variance.  Defendant here did not appear amendable to rehab.  Dist ct did not abuse its discretion in finding that potential recidivism warranted upward variance. 
* Conduct with the 12-year-old girl was accounted for in GLs (5-level enhancement).  This conduct was covered---even if other conduct also supported the enhancement.  So this conduct was not a justification for the upward variance.   
* Defendant's conduct was not outside of what is generally covered by the GLs. 
* The COA could not tell how much of the upward variance was based on potential recidivism and how much was based on the conduct with the girl, so remand was necessary. 

J. Griffin dissented.

Dissent:
* Given totality of circumstances, the sentence was substantively reasonable. 
* GLs provide for upward departure for under-represented criminal history. 
* Defendant presented a high risk of recidivism---more so than "the average sex offender." 

Terry Stops: 6th Cir. Provides New Guidance

Another snow picture!

United States v. Young, No. 11--2296 (6th Cir. Dec. 20, 2012) (designated for publication on Feb. 7, 2013).

Panel of Judges Siler, Cook, and Steeh (E.D. Mich).

Felon-in-possession case.

Procedural wrinkle:
* Defendant moved the district court to suppress evidence in 2007 during his original case.  He appealed that court's denial of the motion.  The COA affirmed b/c the defendant had not preserved the issue properly. 
* The defendant then filed a 2255 based on counsel's failure to preserve the issue.
* The district court vacated the original plea and accepted an amended conditional plea that preserved the issue.
* This appeal then followed.

Facts:
* On December 15, 2006, at 1:15 a.m., the defendant was sitting in the passenger seat of a car, in a reclined position, in a city-owned parking lot outside Julian's Bar and Restaurant in Grand Rapids, MI.  It was a lot regularly used by Julian's patrons. 
* Area had a recent history of violent crime, including shootings and assaults.
* Police officers testified that those waiting outside Julian's are more likely to be armed, as Julian's conducts pat-downs.
* Officers also testified that they look for those loitering, as loitering leads to "problems." 
* Under the city's loitering and trespassing ordinances, it was a crime to be in the lot without business at the adjacent establishments.
* Officers pulled into the lot.  They parked behind the defendant.  They observed the defendant for about a minute and a half.
* The officers approached the car in which the defendant was sitting.  They looked through the windows with flashlights.  One officer hit the passenger window with a flashlight.  After a fifteen-second pause, the defendant rolled down the window.  The officer requested ID.  When asked if he was "chillin'," the defendant replied that he'd fallen asleep while his companion ran into Julian's to see if they could get a table, or if they should just get take out. 
* The friend returned to the vehicle at that point.
* Officers sent the friend back into Julian's and told the defendant to "sit tight."
* The officers collected the defendant's ID and ran a warrant check.
* The defendant allegedly began making gestures around his pocket, as though he had contraband.  An officer asked the defendant to step out of the car.  The defendant then disclosed that he had a gun.  The defendant was cuffed, an officer reported an outstanding warrant, and the entire incident lasted about four minutes.

Conclusions and reasoning:
* The defendant was subject to a Terry stop when the police car parked behind the vehicle in which he sat.
* COA cited United States v. See, 574 F.3d 309 (6th Cir. 2009), and United States v. Gross, 662 F.3d 393 (6th Cir. 2011).  Even though the stop here occurred before these cases were decided, this case was pending on direct review after those decisions. 
* At the time the police cruiser parked behind the defendant, the police had reasonable suspicion to stop the defendant: it was a high-crime area, Julian's pats its patrons down, and the defendant was reclined in the car. 
* The high-crime area and pat-downs are contextual factors entitled to little weight, but they are still relevant.  The COA recognized that the crime in the area was violent crime, as opposed to the trespassing the police suspected the defendant was engaged in, but officers testified that trespassing and guns "are inter-related."  The pat-downs at Julian's meant ppl with guns were more likely to wait outside.   
* The COA gave reclining in a car at 1:15 a.m. more weight.  Officers believed the defendant was trespassing. 
* The COA rejected the defendant's "novel argument that suspicion of a mere trespassing violation is not sufficient to support a Terry stop under a 'reasonableness' inquiry because such offenses do not pose a danger to the public." 
* The warrant check and initial questioning were permissible under Terry.  While the permissibility of the warrant check was undecided prior to this case, the COA concluded that the check was permissible.  Other circuits had so held. 
* The warrant check would have produced the outstanding warrant regardless, so the officers could have arrested the defendant, and would have discovered the gun. 
* The stop, the COA noted, lasted only four minutes.  It was reasonable to tell the defendant to "sit tight." 
* COA recognized the potential for Terry-stop abuse, but decided that police must be able to investigate actual crimes, even if the crime is just trespassing. 
 

 
 

Drug GLs and Prior "Similar Offense"

United States v. Johnson, No. 12--1277 (6th Cir. Feb. 7, 2013) (for publication).

Panel of Judges Martin, Boggs, and Collier (E.D. Tenn.).

GL section 2D1.1(a)(1) for distribution of drugs resulting in death.

Defendant argued that prior conviction for delivery of heroin was not a "similar offense."

Ct of Appeals rejected this position and affirmed.

Base offense level 43 applied under 2D1.1(a)(1) b/c of prior conviction for delivery/manufacture of a controlled substance, less than 50 grams (involved 3.5 grams of heroin).  This prior conviction did NOT involve death or serious bodily injury.  So defendant argued it was not a qualifying offense for enhancement purposes to produce the BOL of 43.  Government countered that "similar offense" just means "felony drug offense," as used in 21 U.S.C. 841(b)(1)(C), so enhancement applied.

* The GLs do not define "similar offense" in this context.

* 4A1.2, note 12 provides a list of factors to consider when determining the similarity of offenses.  The COA said Chapter 4 is completely different from Chapter 2. 

* Amendment 123 of the GLs (from 1989), the COA said, provides guidance.  Originally, 2D1.1(a)(1) said "similar drug offense" meant one given in 21 U.S.C. 841(b) or 962(b).  Amendment 123 removed this definition, and replaced it with the current language.  The Sentencing Commission said the amendment was so the enhancement would apply only in the case of a conviction under circumstances given in the "statutes cited," namely 21 U.S.C. 841(b)(1)(C).  Latter section uses the term "felony drug offense." 

* COA found that 2D1.1(a)(1) and 21 U.S.C. 841(b)(1)(C) "mirror one another in several respects."  The COA found that "2D1.1(a)(1) merely reinforces the enhanced penalty mandated by statute."  The "Commission intended the term 'similar offense' to be synonymous with the term 'felony drug offense.'" 

* The fact the prior was of a lesser magnitude did not sway the COA.  Nor did the provisions of 21 U.S.C. 851, which requires the gov to file an information if it intends to seek an enhanced mand min for drug offenders with priors.

* Disproportionate-result argument did not win favor either.  No 8th Am violation.   

First Amendment, Social Media, Sex Offenders

Interesting case on sex offenders and social media. . . .

Doe v. Prosecutor, No. 12—2512 (7^th Cir. Jan. 23, 2013) (for publication).

Indiana statute prohibited sex offenders from using social media sites, instant messaging, and on-line chats.  John Doe challenged this statute on First Amendment grounds.  The Seventh Circuit found the law unconstitutional.  While it was content neutral, it was not narrowly tailored to serve the state’s interests.  It broadly prohibited substantial protected speech instead of targeting improper communications to minors. 

Indiana Code section 35-42-4-12 prohibited certain sex offenders from knowingly using social-networking sites or instant-messaging or chat-room programs that the offender knows allow minors access or use. The statute did not differentiate sex offenders based on the age of the victim, the manner in which the crime was committed, or the time since the prior offense.  There was an exemption for people convicted of “Romeo and Juliet relationships,” those in which victim and perpetrator were close in age and had a consensual relationship.  The statute did not cover e-mail.

After a bench trial, the district court upheld the law, finding it narrowly tailored to serve a significant state interest.  There were other means of communication available. 

The Seventh Circuit found that the statute clearly implicated First Amendment rights: it precluded expression through social media, and it limited the right to receive information and ideas.  The law was content neutral---its restrictions did not turn on the content of the expression.  The state could “impose reasonable ‘time, place, or manner restrictions.’” 

To impose such restrictions, the law would have to meet “a variant of intermediate scrutiny.”  It had to be narrowly tailored to serve a significant government interest, and it had to leave open “ample alternative channels” allowing communication of the information.

The court found that the statute was not narrowly tailored, so it did not reach the alternative-channel inquiry. 

The statute targeted substantially more activity than the evil it sought to redress.  The district court had acknowledged this breadth, finding that the law captured conduct that had nothing to do with minors.  Indiana has other means to combat inappropriate communication between minors and sex offenders.

The court of appeals did not want to impose “too high a standard” on the state.  But in the end, “the Constitution tolerates some over-inclusiveness if it furthers the state's ability to administer the regulation and combat an evil,” but not as much as was presented here.   

There were other laws to address these concerns.  Indiana had statutes prohibiting solicitation.  The court of appeals observed that “[b]y breaking two laws, the sex offender will face increased sentences; however, the state can avoid First Amendment pitfalls by just increasing the sentences for solicitation—indeed, those laws already have enhanced penalties if the defendant uses a computer network.”

For our purposes, it is important to note that the court said, “this opinion should not be read to affect district courts’ latitude in fashioning terms of supervised release.”  It noted that “in assessing the need for incapacitation, see § 3553(a)(2)(C), a court could conceivably limit a defendant’s Internet access if full access posed too high a risk of recidivism.”  A total ban on the Internet could, however, be too broad.