Red Dog

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

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Friday, December 7, 2012

CP Restitution

OK, I'm sorry for being such a bad blogger, but I'll be better now.  Things have calmed down.  Blogging more will be a new-year's resolution.  ;)

OK, we are seeing restitution claims in child-pornography case now in the WD Mich.  We talked a little bit about this issue at CDAM in TC.  I just posted re the Fifth Circuit's decision, en banc, in November.  Here's the link to my post on the Sixth Circuit blog.  The opinions totalled 58 pages and are worth a read if you are into statutory interpretation. 

http://circuit6.blogspot.com/2012/12/the-cp-restitution-debate-continues.html

Have a good weekend!

I plan to be back here, and blogging fully here---not just links---next week!

Saturday, September 8, 2012

6th Cir Changes

Sorry, trial has made time scarce, so no blogging.

But FYI: 6th Cir. amended the 6th Cir. Rules on Aug. 16, 2012.  New ones are on-line.  Check your citations!  There are changes! 

http://www.ca6.uscourts.gov/internet/rules_and_procedures/pdf/rules2004.pdf

Also, the checklist for briefs in not on-line.  It's under review, so I anticipate some changes there too.

Thursday, August 23, 2012

ACCA and Shepard Documents

Sorry it's been so long without posts!

Today, we have United States v. Amos, No. 11-5367 (6th Cir. Aug. 23, 2012) (not for publication).  Panel of Judges Boggs, Gilman, and Donald. 

Issue:

Can dist ct consider probable-cause affidavit incorporated by reference during a prior sentencing?

Conclusion:

Yes, b/c defendant stipulated to the facts in the affidavit.

Procedural History:

* Felon-in-possession case. 
* There were a number of prior offenses.  PSR scored defendant under ACCA. 
* Defendant objected.  He argued that two of his prior convictions should not be counted as separate offenses.  He argued the dist ct could not conclude that that the priors had occurred on occasions different from one another, as required by the ACCA.  The dist ct had to turn to the probable-cause affidavit the state sentencing ct had used as the factual basis for the prior no-contest plea.
* Dist ct concluded the D did not qualify for ACCA treatment.
* Gov appealed.
* COA reversed the dist ct and remanded for resentencing.

COA Opinion:
* The D had stipulated to the facts in the probable-cause affidavit.
* The state judge who sentenced the D on the prior stated he was using the affidavit as the factual basis for the plea. 
* If a defendant stipulates to the accuracy of a document describing the facts of an offense, and that stipulation falls into a Shepard source (eg the defendant stipulates during the plea colloquy), then that document the defendant stipulated to is acceptable under Shepard

Additional Points of Interest:

* Footnote 4: SCOTUS and 6th Cir have left open the issue of whether Shepard even applies in the context of determining whether prior offenses occurred on separate occasions.  Does Shepard just apply to determine whether a prior qualifies as a violent felony?  COA does not decide here b/c probable-cause affidavit here "became a Shepard-approved document when incorporated by reference in the plea colloquy." 
* It appears from the discussion in Amos that a defense attorney's stipulation is enough---the defendant need not actually stipulate on the record.  But this issue may be one to challenge.  There's room for argument

There's been a lot of interesting case law recently!  I'm trying to keep up!  I'll try to post more soon!

(Just b/c it's pretty!)



Friday, August 3, 2012

Ex Post Facto and GLs

United States v. Welch, No. 10-4025 (6th Cir. Aug. 2, 2012) (to be published).  Panel of Judges Merritt, Cook, and Cox (E.D. Mich.).

Counterfeiting case.

Two issues:

* Did dist ct violate Ex Post Facto Clause by calculating GLs with an amendment to 2B5.1 that went into effect b/t time of offense and sentencing, so defendant received a harsher sentence than would have applied at time of offense?

* Did dist ct err by not ordering fed sentence to run concurrently with undischarged state sentence (in contravention of 5G1.3(b))?

Conclusion:

* Remand necessary b/c Ex Post Facto Clause had been violated

Reasoning:

* COA considered whether the dist ct erred in using 2B5.1 instead of 2B1.1 to calculate offense level.  Usually, GLs in effect at time of sentencing apply.  2B1.1 had been standard.  2B5.1 had commentary excluding the D's offense.  But COA noted that 2B1.1 was not clearly applicable.  There was ambiguity, but most cts had been using 2B1.1

* In response to the confusion, Sentencing Commission had issued an amendment (731) that amended 2B5.1 to include explicitly the D's offense.  The amendment became effective Nov. 1, 2009.

* The D argued that using the amended version of 2B5.1, which took effect b/t the time of the offense and sentencing, violated the Ex Post Facto Clause. 

* If a revision to the GLs changes the legal consequences of an offense that occurred before the revision took effect---to the detriment of the D---the GLs in effect at the time of the offense must apply. 

* Here, 2B1.1 provided an offense level 5 levels lower than that under 2B5.1.  So there was an ex post facto violation. 

* The gov conceded the ambiguity of which GL section would apply, but argued that the amendment simply clarified what was always intended.  COA rejected this argument.  2B1.1 was the GL cts had been using.  And Commission did not label the amendment a "clarifying" amendmentRule of lenity had required using 2B1.1. 

* On the issue of concurrent or consecutive time, the COA used plain-error review b/c D had failed to object in dist ct.  5G1.3(b) did not apply b/c state conviction did not increase federal GLs.  Federal conduct was separate from the conduct that led to the state conviction (though both were counterfeiting offenses).  Dist ct properly exercised its discretion under 5G1.3(c)



Friday, July 20, 2012

Career Offenders and Crack Reductions

Just put this one up on the 6th Cir. blog, so you'll see it there too.

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.

Tuesday, July 17, 2012

New BOP Blog

Interested in BOP issues?  New blog to watch:

http://thebopblog.blogspot.com/



CP Trial: Rape Shield, Double Jeopardy, and More

I just posted this one on the 6th Cir. blog b/c it's my week to post there.  So you may have seen it already....

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.

Tuesday, July 3, 2012

FSA Getting Fleshed Out

United States v. Finley, No. 10-3672 (6th Cir. June 29, 2012) (unpublished).

Panel of Judges McKeague, White, and Barrett (S.D. Ohio).

OK, so we got Dorsey on June 21: the FSA applies to defendants sentenced after the FSA went into effect, even if the offense occurred pre-FSA

Well, the Sixth Cir. just concluded that the FSA does not apply to people sentenced pre-FSA, even if their cases were on appeal when the FSA went into effect.  The COA rejected a Dorsey argument

Mandatory life on the table in Finley.  Jury found D guilty.  GL range of 151 to 188 months, but statute trumped and D got life in prison.  Mandatory minimum under the FSA would have been ten years (248 grams of crack + prior convictions).

COA looked to 1 U.S.C. 109 and Carradine.  Also looked to other circuits.  Cabined Dorsey to post-FSA sentencings.  COA rejected policy arguments.  Court also rejected argument about the case being on direct review: precedent on this issue applies only to S Ct decisions that come out---not to statutes. 

(The other issue was ineffective assistance of counsel.  While the defendant "raises serious questions about the competence of his defense counsel," ineffective-assistance claim not for direct appeal---needs to be in 2255.) 

COA affirmed.

Enjoy the 4th!

Tuesday, June 12, 2012

On What Night Would You Host a Bachelor Party? And Does the Choice of Night Give Rise to Reasonable Suspicion?

An interesting question I'm sure we've all pondered: on what night should one host a bachelor party?

United States v. Rodriguez, No. 10-1874 (6th Cir. June 12, 2012) (unpublished). 

Judges McKeague, White, and Barrett (S.D. Ohio).

Per curiam.

Cocaine and heroin case.  Defendant appealed denial of motion to suppress.  COA affirmed.

Michigan State Trooper stopped D on I-94.  The trooper had been sitting in a marked police car and had been watching eastbound traffic.  Trooper saw the D lean back in his seat "in an apparent attempt to hide behind the door post" when the D passed the trooper.  Trooper began following the D.  Stopped D for following a semi-truck too closely.

After stop, no ticket issued.  Trooper told D that D was free to go, but then asked if he could ask the D something.  About four minutes of questions.  D ultimately consented to a search of the van and officers found kilos of heroin and cocaine. 

B/c there was a traffic violation, the stop was legal.  D did not provide testimony to contradict a finding that he was driving too closely behind the truck.

D not unlawfully detained after end of traffic stop b/c a reasonable person would have believed they were free to go after being told they were "good to go."  Police may ask questions after a traffic stop has ended.  No factors to indicate there was a further seizure here.   

The D had been in the back of the police car, so more analysis was required.  But still not a seizure, the COA found, b/c trooper had let D in the car to get out of the cold (D had been standing outside). 

And, COA continued, even if there was a seizure, there was reasonable suspicion to support it.  And here's where the bachelor party comes in

Factors COA found established reasonable suspicion:
* D had leaned back in his seat when he passed the patrol car in an apparent attempt to hide his face behind the door post;
* D slowed down when he passed the patrol car; 
* That stretch of I-94 (between Chicago and Detroit) is considered a "pipeline corridor" for drugs
* The van smelled strongly of air fresheners (commonly used to mask drug odors);
* The van was not registered to D
* D had stated that he was going to his cousin’s bachelor party, but he said he did not know the date of the wedding;
* D said the party was on a Thursday, "an unusual night for a bachelor party."

COA found that these factors, viewed in their totality, were sufficient to establish reasonable suspicion.

Judge White dissented.

She found that the D had been detained without reasonable suspicion after the traffic stop was completed.  A reasonable person would not have felt free to leave.  No reasonable suspicion to justify seizure.  All the factors the majority cited were weak"There is nothing inherently suspicious about a bachelor party being held on a Thursday." 

Consent to search was tainted.  Evidence should have been suppressed. 

ACCA Loss

United States v. Cottrell, No. 10-4573 (6th Cir. June 12, 2012) (unpublished).

Panel of Judges Moore, Sutton, and Stranch.

Sixth Circuit cites United States v. Coleman, 655 F.3d 480 (6th Cir. 2011), to decide that the defendant's prior Ohio burglaries count for ACCA purposesColeman is discussed on this blog below (Aug. 25, 2011). 

The interesting catch to the case is that the district court had determined pre-plea that the priors did not count.  For those of you in Lexington at the Sixth Circuit Conference, you may remember the discussion of pre-plea determinations....

Wednesday, May 30, 2012

SCOTUS to Consider Standing to Challenge Wiretapping

The S Ct granted cert in Clapper v. Amnesty International, No. 11-1025 (May 21, 2012). 

Question presented includes a little background:

Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1881a (Supp. II 2008) (Section 1881a) allows the Attorney General and the Director of National Intelligence to authorize jointly the targeting of "non-United States" persons "reasonably believed" to be outside the United States.  This targeting would be to acquire "foreign intelligence information," and would normally be with the Foreign Intelligence Surveillance Court's prior approval. 

The respondents in this case are "United States persons who may not be targeted for surveillance under Section 1881a."  They filed their action on the day Section 1881a was enacted, and have sought a declaration that Section 1881a is unconstitutional, and an injunction permanently enjoining any foreign-intelligence surveillance under Section 1881a.

The crux of the issue is whether the respondents lack Article III standing to seek prospective relief because they have proffered no evidence that the United States would imminently acquire any of their international communications using Section 1881a-authorized surveillance.  And they have not shown that an injunction prohibiting Section 1881a-authorized surveillance would likely redress the claimed injuries.

Second Circuit decision at: 638 F.3d 118.

If you like standing issues (and you know we get them once in a while!) and/or wiretapping and dragnet-surveillance issues, keep your eyes on this one!  Fourth Amendment issues undergird the whole thing. 


Thursday, May 24, 2012

Lafler Playing Out: IAC

So here we go: we're starting to see ineffective-assistance cases fleshing out Lafler.

Titlow v. Burt, No. 10-2488 (6th Cir. May 22, 2012) (for publication).

Have a great Memorial Day weekend, everyone!

Chief Judge Batchelder, Judges Clay and Gilman.

Chief Judge Batchelder dissented. 

State prisoner appealed dist ct's denial of her habeas petition.  She was convicted of second-degree murder.  COA reversed.  Ineffective-assistance-of-counsel claim arising out of plea-bargaining process had merit.  Inmate's second attorney was ineffective b/c he failed to investigate case before recommending that the inmate withdraw her plea.  Under plea, inmate would have received a 7-to15-year sentence.  After being convicted by a jury, the inmate received a 20-to-40-year sentence.  COA conditionally granted the habeas petition and gave the state 90 days to reoffer the original plea or to release the inmate.

Plea:
* Inmate was represented by an attorney who negotiated a plea deal.  Charges reduced to manslaughter, 7-to-15-year sentence.  Defendant to submit to a poly and testify against co-defendant.  Defendant would not challenge the prosecutor's recommended sentencing range on appeal. 
* Defendant pleaded guilty.
* After plea, the defendant spoke with a sheriff's deputy at the local jail.  This fellow advised the defendant not to plead guilty if she believed she was innocent.  He referred the defendant to another attorney.  This attorney agreed to represent the defendant in exchange for jewelry and media rights. 
* Defendant withdrew her plea.  Based on defendant declining to testify against the co-defendant.

Post-Plea Proceedings:
* The new attorney did not obtain the file, inspect the state's discovery materials, or speak with the prior attorney for a month and a half after the withdrawal of the plea. 
* After obtaining the file, the attorney moved to withdraw.  Claimed lack of $$$ from client. 
* State court appointed a third attorney.
* Jury convicted the defendant and she got 20 to 40 years of custody.  Co-defendant was acquitted. 
* Mich Ct App affirmed sentence on direct appeal and rejected all constitutional challenges.  Mich S Ct denied leave to appeal.  Motion for relief from judgment denied.  Mich Ct App denied leave to appeal that decision. 

Habeas Review:
* The inmate sought fed habeas review.  Dist ct denied, but granted certificate of appealability.

COA Conclusions:
* While decision to plead guilty rests with client, attorney has duty to inform client of options.  Attorney must reasonably investigate case.  Defendants have the right to expect counsel to review their cases and explain the elements, evidence, and sentencing exposure.   
* As Lafler has told us, "the simple fact of a higher sentence after trial is sufficient to demonstrate prejudice" for an IAC claim. 
* Substantial disparity b/t plea offer and post-trial sentence provides evidence that a defendant would have accepted a plea deal. 
* COA recognizes that "defendants may have legitimate reasons for continuing to maintain their innocence during and even after plea negotiations." 
* No need for a defendant to support with objective evidence an assertion that they would have accepted a plea offer.
* No evidence that the second attorney explained the elements of the charges, explained the defendant's sentencing exposure, or discussed the evidence.  Attorney failed in his obligations. 
* Not sound professional judgment or strategic choice.
* Inmate can show the court would have accepted the plea and the sentence would have been less.  The court accepted the plea the first time around.  Sentence the inmate got was substantially higher than the one available under the plea. 

Remedy:
* Lafler kind of leaves this door open. . . .
* Problem here is the plea deal was based in part on the inmate's agreement to cooperate against the co-defendant.  Co-defendant was acquitted and then died, so that basis for the plea deal is now gone.
* State should reoffer the plea.  State trial court would then have discretion to vacate the trial conviction and accept the plea or leave the conviction undisturbed.  State court should recognize the plea deal as a "baseline" to consult in fashioning an appropriate remedy.
* But COA acknowledges there may be a problem if the state court just reimposes the last sentence.  But Lafler says the state court must at least consult the initital plea agreement in crafting a new sentence.  Ct's discretion is not unfettered.  If there's a problem (eg, new sentence is greater than origianl plea deal), the later remedy in fed ct is a question for another day. 

Chief Judge Batchelder's dissent:
* Mich Ct App's denial of IAC claim was reasonable. 
* It was not counsel's advice that motivated the defendant to withdraw her plea.  And even if counsel encouraged the withdrawal, such advice did not fall below an objective standard of reasonableness.
* Counsel represented the inmate for only three days before the plea withdrawal.  No time to review case file. 
* Lafler distinguishable b/c that petitioner "presented actual evidence that he received deficient advice." 
* Lafler does not require the trial ct to consult the original plea agreement.  Lafler "simply says that the 'baseline' of the original plea offer 'can be consulted in finding a remedy.'"
* Lafler does not require resentencing

Tuesday, May 22, 2012

Great Crime-of-Violence and 2L1.2 Case

Kudos to one of our panel attorneys.  We now have United States v. Rede-Mendez, No. 10-2509 (6th Cir. May 21, 2012) (for publication).

Panel of Judges Moore, Griffin, and White.  Judge Griffin dissented.

Illegal-reentry case.  Below GLs sentence of 36 months (GLs were 57 to 71 months).  D had gotten the 16-level bump for a prior crime of violence.  He had a New Mexico aggravated assault (deadly weapon).  COA found this prior was not categorically a crime of violence, and the Shepard docs did not reveal the details of the conviction.  Case remanded for resentencing. 

To Note:
* The application notes to 2L1.2 give aggravated assault as a crime of violence. 
* Categorical approach applies.  And the name of a prior offense does not govern.  Just b/c it's called aggravated assault does not mean it is!  Must fall w/i generic definition. 
* COA looks to Model Penal Code for guidance.
* Reiterates need to "feign agnosticism" if Shepard docs don't reveal nature of prior offense.  "The likelihood that a defendant's conviction was based on a particular version of the offense is not a factor in the crime of violence analysis."  What matters is what the gov can show. 
* A statement of probable cause is NOT a Shepard document.

New Mexico Aggravated Assault:
* Includes using insulting language to impugn honor, delicacy, or reputation.  Even if a prosecution under this subsection might be rare, or even unconstitutional, it's still available to prosecutors. . . .
* Does not require specific intent to injure or frighten.
* A deadly weapon alone does not necessarily make it a crime of violence.

J. Griffin's Dissent:
* The 10th and 5th Circuits have held that New Mexico agg assault w/deadly weapon has as an element the use of force.  So they have found it to be a crime of violence. 
* Suggests that "common and legal sense" dictate that New Mexico courts do not recognize agg assault with a deadly weapon arising from insulting language.


Friday, May 18, 2012

Busy Week!!!! CP Sentencing, Habeas Rape Shield

Lots from the Circuit this week.  It was my week to blog for the Sixth Cir. blog, so I'll just point you in that direction this week.  Especially b/c it's been quite busy.  Check out the good decision on a CP sentence: it was substantively unreasonable (kudos to a WD Mich panel attorney for that one!).

Gagne v. Booker decided by en banc Court.  Addresses rape-shield, habeas, confrontation, and Sixth Am issues.  (Thanks to another blogger for covering that big opinion!)

All at www.circuit6.blogspot.com!


Friday, May 11, 2012

Interesting Glimpse into MDOC Issues

Mosholder v. Barnhardt, No. 10-2586 (6th Cir. May 11, 2012) (for publication).

Panel of Judges Cole, Stranch, and Carr (N.D. Ohio).

Plaintiff-appellant appealed grant of summary judgment on her First Amendment retaliation claim.  The plaintiff had been a corrections officer for MDOC at the Lapeer Thumb Correctional Facility.  She was the institution's school officer, so she would patrol the school and discipline inmates as needed.

The facility held a rap musical competition for youthful offenders in 2008.  The plaintiff claimed she heard gang references and saw gang signs during the competition.  The defendant wardens claimed they saw nothing of the sort. 

The plaintiff sent a letter to several Michigan state representatives and senators, expressing concern over the way the rap competition was conducted.  She also cited safety concerns at the facility and listed incidents.    

The plaintiff was reassigned to a less favorable position in the facility.  She sued in state ct and the case was removed to federal ct.  The plaintiff brought a First Amendment retaliation claim.  The COA reversed the dist ct's grant of summary judgment for the defendant-appellees and remanded.

The case is interesting b/c it provides a little look into MDOC concerns, programs at MDOC facilities, and treatment of youthful offenders.  The events took place a few years ago, so things may have changed, but the descriptions provide a look at a state correctional facility. 

Click here for the case.

Crack Retro and Career Offenders

Check out United States v. Jackson, No. 10-3923 (6th Cir. May 8, 2012) (for publication), for news on career offenders and the retroactive crack amendments.

It's discussed on the Sixth Cir. blog at www.circuit6.blogspot.com.

Catching Up! Jurisdictional Issues. . . .

Whew!  Sorry for the absence.  Lots going on + Sixth Cir Conf in Lexington, Kentucky!

But I'll do some catching up today.

United States v. Detcher, No. 10-3776 (6th Cir. May 8, 2012) (not for publication). 

Panel of Judges Kethledge, Stranch, and Gwin (N.D. Ohio).

CP and sex-abuse-of-a-child case.  Defendant argued that the Ohio dist ct lacked subject-matter jurisdiction over the sex-abuse offense b/c the offense occurred on a U.S. Army base in Germany.  COA remanded case to dist ct. 

First, "the fact that [the defendant] did not make this jurisdictional argument below does not release [the COA] from [its] duty to determine the issue." 

Second, there's a circuit split over whether "the special maritime and territorial jurisdiction of the United States" includes only federal lands within the territory of the United States.  Does such jurisdiction extend extraterritorially?  "Special maritime and territorial jurisdiction" is defined in 18 USC 7

Third, the defendant argued that even if the statute reaches areas outside the U.S. it does not reach the base in Germany.  He based his argument on the fact that Germany has not ceded any jurisdiction to the United States civilian courts to try crimes there.  The defendant looked to the status-of-forces agreement between the U.S. and Germany.  He argued only trial in military court might be permitted. 

The COA remanded to the dist ct to consider the issue. 

Wednesday, April 11, 2012

Another ACCA Disappointment

There must be some disturbance in the force causing bad things, or a cloaked Klingon Bird of Prey taking pot shots at us.  :(

United States v. Johnson, Nos. 10-5691/5778 (6th Cir. Apr. 11, 2012) (for publication).

Panel of Judges Keith, Griffin, and Stranch.

Gov cross-appealed when dist ct did not sentence D under ACCA (18 USC 924(e)).  COA agreed with gov, vacated the sentence, and remanded for resentencing.   

Prior at issue: Missouri third-degree assault.  Can involve reckless conduct---not just intentional.  Normally a misdemeanor, but there was a recidivist enhancement here.   

The D was not charged with reckless conduct; the criminal information clarified that the D was charged with intentionally attempting to cause physical injury

COA clarified that the residual clause is not meant to be a "catch-all provision."  Also stated that "we must consider whether the prior offense 'conduct is such that it makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.'" 

COA classifies Begay's similar-in-kind test as "of secondary importance under Sykes."  It did, however, still address the test.  The Court also found that the assault offense is exactly the type of conduct that makes it more likely that the offender would use a gun to harm someone.  It shows a capacity for violence. 

While the gov raised the issue, the COA did not address the force clause and the question of whether the assault offense could qualify under that clause. 

The fact that this prior offense involved an attempt was inconsequantialAttempts can qualify as violent felonies. 

The D had also appealed, arguing the dist ct, without proper reasoning, ordered his fed and state sentences to be consecutive.  The issue became moot given the ACCA ruling, but the COA did note in footnote one that the dist ct "should expressly consider" the 3553(a) factors and USSG 5G1.3(c) and the relevant commentary in imposing a consecutive sentence. 

Thursday, April 5, 2012

ACCA Disappointment: DVs Qualify

United States v. Kearney, No. 10-1532 (6th Cir. Apr. 5, 2012) (published).

Panel of Judges Merritt, Clay, and Sutton.  J. Merritt dissented.

ACCA issue.

Priors were for domestic violence: 93-day misdemeanors under Mich law.  But the max penalty increased for D b/c of a recidivism enhancement.  Statute is the familiar MCL 750.81(2).  Assault or assault and battery. 

COA recognized that touching was enough to sustain a conviction under Mich law.

PSR showed that the offenses involved punching, kicking, and stomping the victim for the first conviction and striking the victim with an unknown object for the second conviciton.  The D did not dispute these allegations. 

Interesting footnote (#4): it's improper to rely on a PSR to determine whether a prior offense counts for ACCA purposes, but COA wouldn't address that issue b/c defense had not objected in dist ct.  COA does cite United States v. Wynn, 579 F.3d 567 (6th Cir. 2009).

Will a prior conviciton enhanced b/c of a recidivism enhancement count for ACCA purposes?  Yes.  COA cites United States v. Rodriquez, 553 U.S. 377 (2008).


The COA cites Johnson v. United States, 130 S. Ct. 1265 (2010).  But it does so in the context of considering recidivism enhancements.  Perhaps it is b/c the nature of the conduct was known, but there is no argument on the level of force required to be an ACCA predicate conviction or any Begay argument regarding the conviction's failure to fit under the residual clause. 

So those avenues remain open. 

(Hey, it's hard to find free pics.  But take it as a pirate exhortation to keep raising these issues!)
J Merritt reads Johnson broadly in his dissent: state misdemeanors enhanced into felonies b/c of a similar prior misdemeanor are not the type of predicate offenses the ACCA contemplates. 

He finds: "Turning misdemeanor domestic abuse statutes into predicate offenses under the federal 15-year statute when the wife or husband violates the local statute twice seems a far cry from the type of recidivism Congress had in mind when it decided to take the sentencing process away from the federal sentencing judge and impose a long mandatory sentence."

He also cites the rule of lenity

Wednesday, March 28, 2012

Proffers and Info in PSRs

United States v. Merlo, No. 10-2003 (6th Cir. Mar. 23, 2012) (unpublished).

Panel of Judges Merritt, Boggs, and Clay.

Just a quick note on this unpublished case that addresses the use of proffer info at sentencing.

Tax-fraud case.  Defendant argued on appeal that the government violated the plea agreement by using information he provided while cooperating against him at sentencing and for calculating restitution.  The COA affirmed. 

Plain-error review. 

The information the dist ct considered at sentencing was not new information the D had provided.  It was info the D had had to provide in answer to a grand-jury subpoena.  So dist ct did not err in considering it.  Also, it was not clear that the info was used to determine the GL range, the D's sentence within the range, or the extent of the the departure.

Regardless of the info at issue, there was ample evidence against the D.     

Rape-Shield Issues on Habeas

Sorry for the delay in posting.  Little hectic.  It was nice saying hello to many of you at CDAM in Novi a couple weeks ago.

Jordan v. Warden, Lebanon Correctional Institution, No. 10-3064 (6th Cir. Mar. 27, 2012) (for publication).

Panel of Judges Gilman, Rogers, and Stranch.

District court denied the petitioner's application for habeas relief (he had been convicted in Ohio court of rape and unlawful sexual conduct with a minor; eight-year sentence). 

Issue: did the state trial ct violate the petitioner's Sixth Amendment rights to present a defense and confront witnesses by improperly applying Ohio's rape-shield law. 

The COA affirmed the dist ct's denial of habeas relief.

Petitioner claimed he never had sex with the alleged victim.  On direct examination, the alleged victim claimed the petitioner raped her, and that it was her first experience with sex.  Defense counsel did not inquire into that latter assertion on direct examination. 

A friend of the alleged victim testified.  On cross-examination, defense counsel asked if the alleged victim had ever confided in the friend--witness that the alleged victim was having sex with people.  The friend--witness said yes, the alleged victim had so confided.  The prosecutor objected, arguing the rape-shield rules applied

During the bench conference on the issue, the defense stated it was not trying to get into prior sexual conduct; it was a matter of credibility.  The alleged victim had testified that it was her first sexual encounter, so the information on prior encounters went to credibility.  The trial court sustained the objection

Petitioner appealed to the Ohio appellate court.  Argued he should have been allowed to present the evidence of the alleged victim's sexual history.  Argued that the state had waived the rape-shield protections by choosing to introduce evidence regarding the alleged victim's lack of past sexual activity.  The Ohio appellate court found that the doctrine of waiver did not apply in the situation.  It rejected the merits of the petitioner's argument. 

The petitioner never tried to cross-examine the alleged victim on the point at issue.  So he cannot argue a confrontation-clause error to seek habeas relief.  The defense also did not object on rape-shield grounds to the state's questioning of the alleged victim regarding her alleged lack of sexual history.  The petitioner waived his challenge to the scope of cross-examination of the alleged victim

In terms of the cross-examination of the alleged victim's friend, trial judges have wide latitude to impose reasonable limits on cross-examination.  Rape-shield laws impose such a limit.  B/c the U.S. Supreme Court has not ruled explicitly on the issue of waiver in the rape-shield context, and b/c of the broad latitude the trial ct has on evidentiary issues, the Ohio COA's decision on waiver was not contrary to or an unreasonable application of federal law. 

In terms of the substance of that cross-examination, only cross-examination seeking evidence of bias or other motivations for a witness's testimony is constitutionally protected.  The Supreme Court has not suggested that the Constitution always confers a right to impeach the general credibility of a witness.  The Supreme Court has also not recognized a right under the Confrontation Clause to impeach adverse witnesses by putting on a third-party witness. 

The state argued that its questioning about the alleged victim's lack of sexual history did not fall under the rape-shield bar.  While questioning "the soundness of this argument," the COA (6th Cir) did not address the scope of the rape-shield law.  Rather, the COA concluded that the trial court did not err in applying the rape-shield law, even if the state's questioning about the alleged victim's lack of sexual history should have been excluded.  The defense had not objected during that questioning.  The state, on the other hand, did object during the defense's cross-examination of the alleged victim's friend.

No confrontation-clause errors based on the limitations the Ohio trial ct placed on the defense's cross-examination of the alleged victim's friend.  Even if there had been error, it would not lead to relief b/c it would be harmless.  The alleged victim's sexual history was a collateral topic and not relevant to the central issues at trial.   




Thursday, March 15, 2012

Habeas and Crawford

AEDPA presents a high standard to overcome to receive relief.  See the Sixth Cir blog for my brief post on a Confrontation Clause/Crawford opinion issued yesterday.

http://circuit6.blogspot.com/

No relief for the petitioner.

Monday, March 5, 2012

More Tech News: Searching Cell Phones

United States v. Flores-Lopez, No. 10-3803 (7th Cir. Feb. 29, 2012) (for publication).

Judges Bauer, Posner, and Rovner.

Seventh Circuit affirms district court's finding that cell-phone call history was admissible despite the fact that this history was obtained b/c the police searched the phone, without a warrant, to obtain the phone's number. 

This opinion is worth a read, especially on the heels of Jones and the GPS issue (see Jan. 25 post).

(I barely remember when phones looked like this one!)


A quick summary:

* Opening a diary found on a suspect whom the police have arrested, to verify the suspect's name and address and to discover whether the diary contains information relevant to the crime for which the suspect has been arrested, is permissible.  The cell-phone search is similar and "even less intrusive, since a cell phone’s phone number can be found without searching the phone’s contents."  
* This search did not touch on the use of an iCam to view the home of the owner of the seized cell phone.

* Other conspirators were involved in the drug distribution and they conceivably could have learned of the arrests (they could have been monitoring the drug deal from afar) and they could have wiped the cell phone remotely before the government could obtain and execute a warrant and conduct a search pursuant to the warrant to find the cell phone’s number.

* It is conceivable that the defendant might have had time to warn co-conspirators before the cell phone was taken from him, allowing time to wipe the phone.  While "conceivably” does not mean “probably,” the set off against the modest benefit to police of being able to obtain the cell phone’s phone number immediately comes at "only a modest cost in invasion of privacy."

* Armed with the phone number, the officers could obtain the call history at their leisure.  And if the number was lawfully obtained, subpoenaing the call history from the phone company would also be lawful.  A history thus obtained could properly be used in evidence against a defendant.

* It is "imperative" that officers have the authority to search or retrieve immediately, incident to a valid arrest, information from pagers in order to prevent destruction of evidence.  Same holds here.

* The court could "certainly imagine justifications for a more extensive search."  But the court leaves these questions for another day, as police here only obtained the phone’s number.

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. 


 

Wednesday, January 25, 2012

Huge GPS Win! Must Have Warrant to Track with GPS!

United States v. Jones, No. 10-1259 (Jan. 23, 2012).  Justice Scalia wrote the opinion.  Chief Justice Roberts joined him, as did Justices Kennedy, Thomas, and Sotomayor.  Justice Sotomayor also filed a concurring opinion.  Justice Alito filed a separate opinion concurring in the judgment, and was joined by Justices Ginsburg, Breyer, and Kagan.

The Supreme Court has concluded that tracking a vehicle by attaching a GPS device to it is a search

I know we've been seeing more and more of these cases in the district, especially in the Northern Division.

Authorities actually got a warrant to track the vehicle, but they installed the device after expiration of the warrant and outside of the authorized jurisdiction.  Over the course of four weeks, the tracker relayed more than 2,000 pages of data

Ultimately, gov charged defendant with cocaine offenses.  Defense filed motion to suppress based on use of the GPS.  Dist ct suppressed data obtained while the car was parked in the defendant's garage.  Ct admitted rest of data b/c from public thoroughfares.  A jury convicted the defendant and he received a sentence of life imprisonment. 

The Court of Appeals for the District of Columbia Circuit reversed, finding that warrantless use of the GPS violated the Fourth Amendment. 

Supreme Court held "that the Government's installation of a GPS devise on a target's vehicle, and its use of that devise to monitor the vehicle's movements, constitutes a 'search.'"  The government here "physically occupied private property for the purpose of obtaining information." 

The Court goes back to eighteenth- and nineteenth-century cases to discuss the original understanding of the Fourth Amendment.  Fourth Amendment jurisprudence was tied to common-law trespass, at least until the later part of the last century.  More recent cases have deviated from the exclusively property-based approach.  Court cited Katz v. United States, 389 U.S. 347 (1967). 

The Court concluded that "Fourth Amendment rights do not rise or fall with the Katz formulation" (the reasonable-expectation-of-privacy formulation).  Rather, the Court must assure preservation of the degree of privacy that existed when the Fourth Amendment was adopted.  For most of the country's history, the Fourth Amendment was understood to be concerned with government trespass upon the enumerated areas: persons, houses, papers, effects. 

The Court discussed the "beeper cases," the cases that had posed problems in the GPS context b/c they had rejected Fourth Amendment challenges to using a beeper to track items: Knotts and Karo.  The Court distinguished Knotts and Karo b/c the beeper was placed in the container with the consent of the owner at the time and prior to the container coming into the defendant's possession.  Here, the defendant possessed the vehicle at the time the authorities installed the GPS. 

Justice Sotomayor concurred:
* Found a search occurred.
* The reasonable-expectation-of-privacy test "augmented, but did not displace or diminish, the common-law trespassory test." 
* Found that "the trespassory test applied in the majority's opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs.  The reaffirmation of that principle suffices to decide this case." 
 * Considered the issue of tracking that does not require trespass (e.g., factory-installed GPS devices tracked by the government).
* Cited Chief Judge Kozinski's (Ninth Cir.) opinion in Pineda-Moreno and acknowledged that "Awareness that the Government may be watching chills associational and expressive freedoms."  The justice would take these factors into account when considering the existence of a reasonable societal expectation of privacy in one's movements. 

Justice Alito also filed a separate concurrence:
* Believes the majority opinion "strains the language of the Fourth Amendment," is not supported by case law, and "is highly artificial." 
* Would use the reasonable-expectation-of-privacy test. 
* Finds that the majority disregards the potential impact of the GPS and potential use of the information, and attaches too much importance to the placement of the unit on the car.  Explores some of the issues with property rights. 
* Concedes there are problems with the reasonable-expectation-of-privacy test. 
* Finds that short-term monitoring on public streets might be OK, but long-term monitoring would not be. 
* Legislation, rather than case law, may be the best means for addressing the issues. 


Friday, January 20, 2012

Tapia and Supervised Release

Supreme Court granted cert, vacated, and remanded to the Fifth Circuit in Breland v. United States, No. 11-6912 (Jan. 17, 2012). 

Gov conceded that Tapia applies in supervised-release context.  Can't lengthen prison time for purposes of rehab.

Thursday, January 19, 2012

Mand Mins and Substantial Assistance

United States v. Hawn, No. 10–2098 (6th Cir. Jan. 11, 2012) (not for publication).

Panel of Judges Daughtrey, Cole, and Rogers.

United States v. Traxler, No. 10-1792 (6th Cir. Jan. 18, 2012) (not for publication).

Panel of Judges Kennedy, Martin, and Stranch.

Government appealed in both cases. Both defendants qualified for the ACCA 15-year mand min. Gov had released both defendants’ mand mins b/c of substantial assistance under 18 USC 3553(e).

Hawn got a year and a day. Traxler got five years.

The district court in Hawn disagreed with the government’s contention that any downward departure had to be based only on substantial assistance. The district court found it could vary based on the 3553(a) factors.

The Hawn Court found that:

* The district court should have started its analysis of a potential downward departure from the mand min, not the otherwise applicable GL range (here, the applicable range was less than the mand min, so the mand min should have become the range).

* The district court should not have departed based on the 3553(a) factors " without mentioning whether or how these factors related to or gave context to [the] substantial assistance."

* The district court had "the limited authority to impose a sentence below the minimum to reflect [the defendant’s] substantial assistance." The Court cited United States v. Bullard, 390 F.3d 413 (6th Cir. 2004), and United States v. Grant, 636 F.3d 803 (6th Cir. 2011). The Court found that Grant applies in the 3553(e) context as well.

The Court vacated the sentence.

The Court also made some notes for resentencing:

* The district court has only the authority to impose a sentence below the mandatory minimum based on the defendant’s substantial assistance.

* BUT the district court has "broad discretion" to consider a number of "contextual factors" to evaluate the value of the defendant’s assistance, the extent of the downward departure.

* The district court is not bound by the government’s recommendation of a two-level downward departure. Can give a greater or lesser departure. But the value of the assistance is the "governing principle." Any reduction should not exceed the value of the assistance.

The Traxler Court found that:

* The gov had not objected at sentencing, so plain-error review applied.

* Bullard applied.

* Interplay between the government’s downward-departure motion and the defense’s motion for a variance was confusing and the district court did not address how it reached its sentence, so remand was justified.

As in Hawn, the Court vacated the sentence.

Judge Stranch dissented:

* Found the sentence resulted from two separate motions: the gov’s motion for a downward departure and the defense’s motion for a downward variance.

* The district court adequately explained the sentence and the sentence should stand.

Saturday, January 14, 2012

Restricted-Access Filing

New Local Rule 32 takes effect Tuesday.  Restricted-access electronic filing for PSRs and objections. 

Check out:

http://www.miwd.uscourts.gov/RULES%20OPINIONS/Admin%20Order%2011-123.pdf