New resource center on collateral consequences just launched.
http://ccresourcecenter.org
Definitely worth checking out.
Also so happy to welcome Gary Springstead as a blogger!
Monday, November 17, 2014
Saturday, November 15, 2014
Indiana Conviction for Felony Battery is a Crime of Violence for Career Offender Purposes
The Sixth Circuit just held, in an unpublished decision (U.S. v. Mendez), that a conviction under Indiana's Felony Battery statute is a crime of violence under the career offender provisions of U.S.S.G. § 4B1.2(a).
The main issue on appeal was whether the defendant's conviction under an Indiana statute, which criminalized battery "result[ing] in bodily injury to….the other person," qualified as "crime of violence" under § 4B1.2(a). While the outcome may seem obvious at first blush, this case serves as a reminder that the Sixth Circuit will carefully analyze convictions that serve as a predicate for Career Offender or Armed Career Criminal sentencing enhancements, if the issue is preserved and raised on appeal.
In the course of analyzing the issue, the Court restated the current state of the law--that, in order to qualify as a "crime of violence," a conviction must encompass "the use, attempted use or threatened use of physical force." "Physical force" in the context of crimes of violence, means "violent force--that is force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140 (2010). However, not all batteries or offensive touchings are considered "crimes of violence." Id. at 139.
In Mr. Mendez' case, the Sixth Circuit held that his conviction for Felony Battery qualified as "crime of violence," finding, through deductive reasoning and an examination of the lesser offenses, that in order to rise to the level of a felony in Indiana, a conviction for Felony Battery necessarily entails the infliction of physical pain or injury. The Court rejected Mr. Mendez' arguments that any such physical pain or injury must rise to the level of "serious bodily injury" before qualifying as a crime of violence, citing the Supreme Court's rejection of this exact argument in U.S. v Castelman, 695 F.3d 582, 590 (6th Cir. 2012).
Bottom line: Carefully scrutinize and, where warranted, challenge any predicate convictions related to Career Offender or Armed Career Offender status because the Court of Appeals will carefully consider any well-founded arguments no matter how obvious the issue may seem at first blush.
--
Gary K. Springstead
Springstead & Bartish Law
Attorney Profile
The main issue on appeal was whether the defendant's conviction under an Indiana statute, which criminalized battery "result[ing] in bodily injury to….the other person," qualified as "crime of violence" under § 4B1.2(a). While the outcome may seem obvious at first blush, this case serves as a reminder that the Sixth Circuit will carefully analyze convictions that serve as a predicate for Career Offender or Armed Career Criminal sentencing enhancements, if the issue is preserved and raised on appeal.
In the course of analyzing the issue, the Court restated the current state of the law--that, in order to qualify as a "crime of violence," a conviction must encompass "the use, attempted use or threatened use of physical force." "Physical force" in the context of crimes of violence, means "violent force--that is force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140 (2010). However, not all batteries or offensive touchings are considered "crimes of violence." Id. at 139.
In Mr. Mendez' case, the Sixth Circuit held that his conviction for Felony Battery qualified as "crime of violence," finding, through deductive reasoning and an examination of the lesser offenses, that in order to rise to the level of a felony in Indiana, a conviction for Felony Battery necessarily entails the infliction of physical pain or injury. The Court rejected Mr. Mendez' arguments that any such physical pain or injury must rise to the level of "serious bodily injury" before qualifying as a crime of violence, citing the Supreme Court's rejection of this exact argument in U.S. v Castelman, 695 F.3d 582, 590 (6th Cir. 2012).
Bottom line: Carefully scrutinize and, where warranted, challenge any predicate convictions related to Career Offender or Armed Career Offender status because the Court of Appeals will carefully consider any well-founded arguments no matter how obvious the issue may seem at first blush.
--
Gary K. Springstead
Springstead & Bartish Law
Attorney Profile
Monday, November 3, 2014
Fantasizing and Scope of 2422(b)
U.S. v. Hite, No. 13-3066 (D.C. Cir. Oct. 21, 2014).
The Federal Defender for DC filed an amicus brief.
Conviction: 18 U.S.C. 2422(b): attempting to persuade a minor to engage in unlawful sexual activity.
Sentence: 22 years + $500k fine.
Facts: D used Internet and phone to communicate with undercover detective who claimed to be adult male with access to twelve-year-old girl and three-year-old boy for sexual activity. No actual kids involved at all.
Issues:
* Does 2422(b) require direct communication with the minor(s)? (Issue of first impression for circuit.)
* Were jury instructions erroneous?
* Did dist ct improperly exclude defense expert?
* Did dist ct improperly prevent defense impeachment of detective?
Conclusions:
* Seven circuits have considered issue of scope of 2422(b). DC Cir joins these circuits and concludes that communications with adult intermediary to persuade minor is enough as long as D's interaction with intermediary is aimed at overcoming minor's will in favor of engaging in sexual conduct.
* There is no general federal attempt statute. Statute here expressly proscribes attempts.
* The "substantial step" required to prove an attempt must strongly corroborate D's intent to engage in conduct to persuade minor by way of the intermediary.
* Ambiguity insufficient to trigger rule of lenity.
* Here, the D argued it was all fantasy: Internet hyperbole. Unfortunately, he did not raise the issue brought in the Federal Defender's amicus brief: activities were mere preparation and insufficient to constitute attempt.
* Conviction vacated and case remanded for new trial b/c jury instructions too broad.
* D's expert (Johns Hopkins psychiatrist) should have been allowed to testify. He was going to address the difference b/t a desire to actually engage in sexual conduct with a minor and mere fantasy/role playing. He was also going to discuss diagnosis of D as not suffering from a psychiatric condition associated with a desire to have sexual contact with children. Finally, he was going to testify regarding relationship b/t CP (D found with CP) and sexual interest in children.
* D's Rule 16 notice not insufficient here. Rule 16 does not require D to explain the basis of the proposed opinions' admissibility or the legal basis for their introduction.
* D's defense was that this activity was all fantasy. D should have been allowed to present testimony to show he was not interested in actual sex with minors.
* Expert testimony on Internet fantasy and sexual fantasies involving minors could have helped jury.
* Dist ct's prevention of cross-examination impeaching detective was not an abuse of discretion (testimony from other cases).
* Case not extraordinary, so no reassignment to new judge on remand.
This case is not a Sixth Circuit case, but still very interesting, esp. given that the Federal Defender's Office contributed an amicus brief.
The Federal Defender for DC filed an amicus brief.
Conviction: 18 U.S.C. 2422(b): attempting to persuade a minor to engage in unlawful sexual activity.
Sentence: 22 years + $500k fine.
Facts: D used Internet and phone to communicate with undercover detective who claimed to be adult male with access to twelve-year-old girl and three-year-old boy for sexual activity. No actual kids involved at all.
Issues:
* Does 2422(b) require direct communication with the minor(s)? (Issue of first impression for circuit.)
* Were jury instructions erroneous?
* Did dist ct improperly exclude defense expert?
* Did dist ct improperly prevent defense impeachment of detective?
Conclusions:
* Seven circuits have considered issue of scope of 2422(b). DC Cir joins these circuits and concludes that communications with adult intermediary to persuade minor is enough as long as D's interaction with intermediary is aimed at overcoming minor's will in favor of engaging in sexual conduct.
* There is no general federal attempt statute. Statute here expressly proscribes attempts.
* The "substantial step" required to prove an attempt must strongly corroborate D's intent to engage in conduct to persuade minor by way of the intermediary.
* Ambiguity insufficient to trigger rule of lenity.
* Here, the D argued it was all fantasy: Internet hyperbole. Unfortunately, he did not raise the issue brought in the Federal Defender's amicus brief: activities were mere preparation and insufficient to constitute attempt.
* Conviction vacated and case remanded for new trial b/c jury instructions too broad.
* D's expert (Johns Hopkins psychiatrist) should have been allowed to testify. He was going to address the difference b/t a desire to actually engage in sexual conduct with a minor and mere fantasy/role playing. He was also going to discuss diagnosis of D as not suffering from a psychiatric condition associated with a desire to have sexual contact with children. Finally, he was going to testify regarding relationship b/t CP (D found with CP) and sexual interest in children.
* D's Rule 16 notice not insufficient here. Rule 16 does not require D to explain the basis of the proposed opinions' admissibility or the legal basis for their introduction.
* D's defense was that this activity was all fantasy. D should have been allowed to present testimony to show he was not interested in actual sex with minors.
* Expert testimony on Internet fantasy and sexual fantasies involving minors could have helped jury.
* Dist ct's prevention of cross-examination impeaching detective was not an abuse of discretion (testimony from other cases).
* Case not extraordinary, so no reassignment to new judge on remand.
This case is not a Sixth Circuit case, but still very interesting, esp. given that the Federal Defender's Office contributed an amicus brief.
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