Objecting to a Search When Co-Residents Consent. . . .

United States v. Johnson, No. 09-6461 (6th Cir. Aug. 29, 2011) (to be published). Panel of Chief Judge Batchelder, and Judges Boggs and White.

Possessing counterfeit securities and fraudulent ID docs. 45-month sentence.

Defendant appealed dist ct's denial of motion to suppress. COA reversed.

Facts:

Police conducted "knock and talk" after they got an anonymous call that residents at target address possessed marijuana and a firearm. Extended family lived in the home, and defendant had stayed there intermittently for several months (his somewhat estranged wife lived there). Another resident opened the door to police.

Defendant came out and objected to a search. (These facts were in dispute.) Other residents consented to a search. Defendant's wife voluntarily turned over some marijuana. Police began searching the bedroom she shared with the defendant; they found a gun, counterfeit money, marijuana, digital scales, and computer equipment.

District Court's Conclusion:

The dist ct found that the defendant did object to a search before the police searched the bedroom. The dist ct, however, found that this objection was invalid b/c the defendant was not a full-time resident of the home. He had, the ct found, a possessory interest "inferior" to the interests of the residents who did consent to a search.

Appellate Court's Conclusions:

Under Georgia v. Randolph, 547 U.S. 103 (2006), a physically present resident's express refusal of consent is dispositive as to him or her, regardless of the consent of fellow occupants. The appellate court here noted that had the S. Ct. been concerned with "relative degrees of possessory interest among residential co-occupants" it could have drawn a distinction in Randolph. But the S. Ct. did not do so. Absent a recognized hierarchy (like parent and child, or like military rank in barracks housing), there is no social understanding of inferior and superior.

The defendant had a reasonable expectation of privacy in the bedroom. He was present when the police arrived. He expressly objected to a search. So the search of the bedroom was unreasonable.

Bench--Bar Conference at Shanty Creek

Don't miss the FBA's Bench--Bar Conference at Shanty Creek Resort in Bellaire! September 30 to October 2. The criminal-law session will focus on discovery and cooperation issues. Come with questions and points to discuss!

www.westmichiganfederalbar.org

Panel Training Next Week!

Don't miss the FPD's panel training next week! It's on Wednesday, the 31st. About 1:30 p.m. to 5:00 p.m. (ish). We'll be in the jury-assembly room. Judge Maloney will address the panel, so bring your questions!

ACCA Decision on Burglary

United States v. Coleman, No. 10-3205 (6th Cir. Aug. 24, 2011) (to be published). Panel of Judges Cole, Rogers, and Sargus (S.D. Ohio).

Defendant sentenced under the ACCA. Had three prior third-degree burglary convictions out of Ohio (one was an attempt).

Court found that "Because the burglary or attempted burglary of an 'occupied structure' creates a risk of physical injury that is similar to the risk posed by generic burglary, the offense is categorically violent under the residual 'otherwise' clause of § 924(e)(2)(B)(ii)." This decision is disappointing for a number of reasons.

1) The Court even says the sentence was "harsh on the facts of this case." After the defendant was arrested b/c of a domestic dispute, police found an unloaded, dilapidated firearm frame in the defendant's pocket. There was no trigger assembly and the frame could not be made readily operable. Unfortunately, it was still a firearm under 921(a)(3)(B).

2) The Ohio statute proscribes non-generic burglary. And the Shepard documents did not shed light on the nature of the burglaries at issue. But the Court found that these prior convictions fit under the "otherwise clause" of the ACCA. The Court looked to a Tenth Circuit case considering the same statute: United States v. Scoville, 561 F.3d 1174, 1180-81 (10th Cir. 2009). (Begay was 2008.)

3) The Court looked to pre-Begay cases to support its conclusions, including United States v. Lane, 909 F.2d 895, 902 (6th Cir. 1990), and United States v. Fish, 928 F.2d 185, 188 (6th Cir. 1991). I once had entertained the naive hope that these cases could be reconsidered after Begay. But the Court closed that door here. (The door has been closing for a while. See United States v. Skipper, 552 F.3d 489, 493 (6th Cir. 2009).)

4) The Court conducted the Begay similar-in-kind-and-degree-of-risk analysis and found the requirements met.

5) The Court also rejected the idea that attempted burglary should not qualify, citing James.

6) The Court cited Sykes to find that purposeful, violent and aggressive conduct need not be a statutory element of the offense in question for the latter to qualify as an ACCA predicate conviction.

7) The Court also reiterated that defendants cannot collaterally attack state convictions at their federal sentencings.

More Death-Penalty Sentencing

United States v. Galan, No. 08-4552 (6th Cir. Aug. 19, 2011) (unpublished). Panel of Judges Guy, Cook, and Stranch.

Defendant appealed his drug-conspiracy conviction and his life sentences for murder with a firearm in the course of a drug conspiracy. Court affirmed the drug-conspiracy conviction, but vacated the life sentences. Remanded for resentencing.

The defendant's first argument was that the district court erred in not instructing the jury concerning the effect of the five-year statute of limitations applicable to the drug conspiracy charge. Plain-error review b/c argument not raised in district court. Five-year statute of limitations under 18 U.S.C. 3282(a). Conspiracy here was a "chain conspiracy." Evidence supported jury's decision to convict the defendant for the charged conspiracy.

Bigger issue was the alleged sentencing error. Defendant argued that district court erred in instructing the jury to choose b/t death or life imprisonment. Defendant argued that the court should have instructed the jury on imprisonment for any term of years as well. Plain-error review here too. Government conceded and appellate court agreed that plain error occurred. Under 18 U.S.C. 924(j)(1), the murder was punishable by death "or by imprisonment for any term of years or for life." Section 924(j) incorporates only the definition of murder found in 18 U.S.C. 1111(a). It does not incorporate 1111(b)'s penalty provisions. Failing to give the jury the option of permitting the judge to sentence a defendant to a term of years is plain error. Resentencing necessary.

FSA Remand

United States v. A. . ., No. 11-XXXX (6th Cir. Aug. 16, 2011) (sealed case). Judges Suhrheinrich, Siler, McKeague. (Call the Defender's Office at 616-742-7420 and ask for Clare Freeman if you want the details on the case.)

Defendant appealed his crack conviction. He was sentenced to the 60-month mandatory minimum (pre-FSA). Gov had argued at sentencing that the FSA did not apply.

Court's order reads: "The government has now changed its position on this issue and maintains that the FSA applies to all sentencings that occur after August 3, 2010." The defendant and the government jointly moved for remand. Court granted, but expressed "no opinion as to whether the FSA is applicable."

Format

Sorry about the formatting for some of these posts. This blog often has a mind of its own and I can't get it to behave. :)

Interesting Death-Penalty Dissent

Abdur 'Rahman v. Colson, No. 09-5307 (6th Cir. Aug. 17, 2011) (to be published). Majority of Chief Judge Batchelder and Judge Siler. Judge Cole in dissent.

Death-penalty case out of Tennessee. Long appellate process. This opinion arises from 2254 claims. The petitioner argued that the prosecution had withheld Brady evidence: pre-trial statements by an accomplice that a sort of gang had influenced the crime and coerced the petitioner into committing it; and a detective's account of the petitioner's self-destructive behavior while in custody (showing serious mental-health issues). Petitioner argued that this evidence may have allowed one or more jurors to conclude that life in custody rather than death was appropriate.

The majority rejected the petitioner's cumulative-error argument on procedural grounds.

The majority found that the petitioner knew of the exculpatory information in the accomplice's statements. The majority also concluded that the petitioner may have known the essential facts of the detective's report on the head banging. Or the petitioner's counsel should have discovered the facts through investigation. And suppression of the report (by the prosecution) did not undermine confidence in the sentence. The majority found that the evidence "would have done little to establish Abdur 'Rahman's mental illness." Or it could have been viewed, according to the majority, as evidence of culpability. The majority affirmed, finding no Brady violations.

Judge Cole dissented. His dissent is worth reading and brings to the forefront issues of justice, the role of counsel (for both the government and the defense), and the challenges defense counsel face.

He writes, "To be sure, the majority has put forth support for its positions, as I have for mine; but viewed at a distance a pattern emerges, and it reveals that the majority’s animating concern—even in this

pre

-AEDPA case—has not been to ensure that a conviction was had without constitutional error, but to efface in the name of federalism, finality, and comity any errors that were present."

He continues, "Getting there is easier than you think. It merely requires a ceaseless commitment to privilege formalism over every other legal value; nowhere is that simpler to do than in the thicket of the Great Writ. If we chop claims into enough pieces and deal with each in a way that is perfectly abstracted from the reality of the death-penalty courtroom, all the errors vanish. The spell does break eventually, when someone looks hard enough to see past the sleight of hand. Whether the revelation will come to a person with the authority to spare Abdur’Rahman, and in time, I do not know."

He finds that "At least one juror could reasonably be predicted to see the case in a different light and vote for life after considering all the withheld evidence in mitigation and the detrimental effect that evidence would have had on the prosecution’s case for death."

His conclusion is haunting: "A parting thought. Whatever your take on the merits of Abdur’Rahman’s claims, one thing about this case is undeniable: the prosecutor desecrated his noble role. He failed grossly in his duty to act as 'the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.' Berger v. United States, 295 U.S. 78, 88 (1935). Abdur’Rahman may face the ultimate penalty as a result; Justice will bear a scar."

More Good Tapia News! Rehab Not Grounds for Going Above GLs!

United States v. Walker, No. 09-6498 (6th Cir. Aug. 11, 2011) (to be published).

Panel of Judges Keith, Clay, and Cook.

Defendant appealed the substantive reasonableness of his thirty-six-month sentence for escape.

Court found that the sentencing court impermissibly lengthened the defendant's sentence to promote his rehabilitation. Court vacated the sentence and remanded for resentencing.

Defendant had a history of drug abuse and mental illness. His conviction in this case was for escaping from supervised release (a Salvation Army halfway house). Issues with his medication contributed to the offense. Guideline sentencing range was 15 to 21 months. Defendant moved for a downward departure or variance, citing diminished mental capacity and cooperation. The district court imposed an above-guidelines sentence of 36 months, so the defendant could "'benefit from all the government can offer' in terms of treatment."

Citing Tapia, the Court noted that "The Supreme Court recently resolved any potential conflict between these provisions, holding that 'a court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise promote rehabilitation.'" In this case, the sentencing court "did precisely what Tapia forbids."

Crime-of-Violence/Violent-Felony Analysis: Ag Assault NOT Categorically a VF! And Use of Plea Transcript. . . .

United States v. McMurray, No. 09-5806 (6th Cir. Aug. 4, 2011) (to be published). Panel of Judges Moore, Gibbons, and McKeague. Judge Moore wrote the majority opinion; Judge McKeague dissented.

Felon-in-possession case. Defendant sentenced as an armed career criminal. Conclusion: Tennessee's aggravated-assault statute is not categorically a violent felony. And in this case, the Shepard docs did not establish the nature of the prior conviction.

The Court found that the "use of physical force" clause of the ACCA requires more than reckless conduct. The decision rests on the potential for just reckless conduct falling under the statute. But the Court also notes (in footnote 6) that causing serious bodily injury may not necessarily require the use of physical force. The prior conviction was not a violent felony under the physical-force clause.

In terms of the "otherwise" clause, after Begay, reckless aggravated assault is not a violent felony.

Looking at the Shepard documents, there is no showing that the defendant necessarily had pleaded guilty to an offense qualifying as a violent felony. The government asked the Court to consider the state's proffer of a factual basis during the plea colloquy. While the plea colloquy is a Shepard document, the defendant here had entered an Alford plea (avoid acknowledgment of guilt). In considering this issue, the Court noted it has declined to consider preliminary-exam transcripts because the defendant did not admit the conduct; Shepard requires a judicial record in which the defendant necessarily admitted certain conduct to enter a plea. The state's factual basis does not qualify.

The Court is clear: "We must consider only the facts necessarily admitted by the defendant in pleading guilty even if we are forced 'to feign agnosticism about clearly knowable facts.'" There are Sixth Amendment concerns as well.

Judge McKeague dissented. He finds that United States v. Matthews, 278 F.3d 560 (6th Cir. 2002), answered the question and makes Tennessee's aggravated-assault offense a violent felony. He finds that Begay did not overrule Matthews and he cites United States v. Benton, 639 F.3d 723 (6th Cir. 2011). (The majority found that case's statements to be dicta.) The dissent also disagrees on the issue of considering the state's factual basis at a plea, but he does agree that reading that factual basis (without obtaining the defendant's confirmation of it) was insufficient. He would allow consideration of those facts if other Shepard documents confirmed them.

Marvin Gabrion's Death Sentence Reversed

United States v. Gabrion, Nos. 02-1386/1461/1570 (6th Cir. Aug. 3, 2011) (to be published).

Panel of Chief Judge Batchelder, and Judges Merritt and Moore. Judge Merritt delivered majority opinion; Chief Judge Batchelder concurred in part and dissented in part.

It's a long opinion (74 pages). I have not been through it all yet, but it's a big issue, so I wanted to post right away. The conclusion is:

"Accordingly, the jury verdict at the guilt phase of the trial is affirmed and the verdict of death at the sentencing phase is reversed. The case is remanded to the District Court for a new trial on the sentencing phase of the case pursuant to 18 U.S.C. § 3595."

Chief Judge Batchelder "would affirm the district court in its entirety — both conviction and sentence." She summarizes her position: "I would conclude that the district court was not obliged to admit evidence or argument concerning Michigan’s abolition of the death penalty; nor was it required to instruct the jurors that, in order to impose the death penalty, they must find 'beyond a reasonable doubt' that the aggravating factors outweighed the mitigating factors. Therefore, I respectfully dissent from these two portions of the majority’s decision. I otherwise concur in the majority’s judgment."

I am hoping to review the entire opinion thoroughly and post in more detail ASAP.

Waiving Appellate Rights: Yes, Those Waivers Stick

In a very short opinion, the panel of Judges Griffin, White, and Watson (S.D. Ohio) dismissed the case of United States v. Vandewege, No. 09-1985 (6th Cir. Aug. 3, 2011) (unpublished). The plea included a waiver of the right to appeal:

"a sentence that is within the guideline range as determined by the Court at sentencing and the manner in which the sentence was determined on the grounds set forth in 18 U.S.C. § 3742 or any ground whatever, in exchange for concessions made by the United States Attorney’s office in this plea agreement, except that the Defendant may appeal on grounds preserved at sentencing, that the Court incorrectly determined the guideline range."

The Court concluded: "Vandewege has waived the issue he advances in this appeal: that his sentence is unreasonable because the district court denied his request for a downward variance from the guidelines range. The appellate waiver provision in Vandewege’s plea agreement waives his right to appeal any sentence within his guidelines range, except on grounds, preserved at sentencing, that the district court incorrectly determined the guidelines range."

At the resentencing (this appeal was the defendant's second), there were no objections to the revised advisory guideline range. The defense did make a request for a downward variance. It was the denial of such a variance that the defendant challenged on appeal. The Court found that the "appeal is waived."

The defense had argued "that the government ha[d] forfeited the waiver argument by failing to bring it in a motion to dismiss." The Court said it strongly encourages the government to file promptly any potential motions to dismiss in such cases. But it also pointed out that it has not held "that the failure to file a motion to dismiss would result in forfeiture of the right to rely on an otherwise valid waiver of appeal." The Court declined to so hold here.

CP and Search Warrant: Nexus and Staleness

What are the chances of getting a pic with a computer and something tying into staleness?!

United States v. Gillman, No. 09-6109 (6th Cir. Aug. 2, 2011) (unpublished). Panel of judges Boggs, Siler, and Van Tatenhove (E.D. Ky.). Child-pornography case. Defendant appealed denial of motion to suppress. COA affirmed that denial.

Facts:

Police accessed a peer-to-peer file-sharing network and saw a user with a given IP address sharing CP. The police contacted the internet-service provider and got information on the person to whom the IP addressed was assigned. Five months later, the police obtained a warrant to search the address-user's residence and computer. Police went to the home and the defendant made a statement. Police then executed the warrant (the defendant denied consent to search).

Defendant entered a conditional plea.

Issue:

The defendant argued "that the IP address was not itself a sufficient nexus between the sharing of child pornography and his residence because it was possible he used a wireless internet router—something that would have allowed anyone nearby to access the internet and share child pornography through his IP address.

Conclusions:

* Court rejects this argument, citing United States v. Hinojosa, 606 F.3d 875 (6th Cir. 2010). Under Hinojosa, the IP address established a sufficient nexus to connect the CP and the residence and computer. Potential use of a wireless router "does not negate the fair probability that child pornography emanating from an IP address will be found on a computer at its registered residential address."

* Five months does not make the info stale. CP is not a fleeting offense.

* Defendant was not in custody when he made his statements, so Miranda did not kick in. Eighty minutes of questioning does not necessarily mean custody.