Red Dog

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

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Friday, February 21, 2014

Clemency . . . .

Yes, I just used the C word. 

It seems we may be looking at some sentence commutation.  And a group of organizations, including the Defender organization, NACDL, FAMM, and more, have formed Clemency Project 2014

BOP is going to be sending notice to inmates outlining the criteria for which the president is looking and telling inmates how to get assistance from the Clemency Project. 

If YOU would like to take a case, please contact Norman Reimer at clemencyproject@nacdl.org

The criteria IN BRIEF(!):
* Drugs (any kind).
* Would sentence be lower if imposed today?
* Long sentence, clean record in custody, not a public-safety threat, and more. . . .

Also, if you have represented someone that you think might be a candidate and want to explore the criteria and/or want to recommend them for review in this process, you can call the office at 616-742-7420 and I can send you more info.

Friday, February 14, 2014

Med MJ Issues

Just posted this one to the Sixth Circuit blog too.

United States v. Duval, Nos. 12-2338/2339 (6th Cir. Feb. 7, 2014) (for publication).

Med MJ issues.

Panel of Judges Cole, Gilman, Donald. 

Issues:
* Was compliance with Mich Med MJ Act (MMMA) relevant to search-warrant application?  COA said no.
* Did the indictment allege a federal crime even though one of the defendants was a registered "caregiver" under the MMMA and qualified for the "practitioner exception" under 21 U.S.C. 802(21)?  COA said yes.
* COA affirmed district court.

Discussion:
* Defendants said search warrant invalid b/c deputy omitted defendants' status as registered patients and caregivers under Mich law.  Gov said issue waived b/c not raised in dist ct.  COA rejected gov's contention---defense counsel probed issue sufficiently in dist ct, though not quite explicitly. 
* Deputy did not have "clear and uncontroverted evidence" that defendants were complying fully with MMMA at time of search-warrant application.  Actually seemed like the defendants were not complying, given what officer knew.  The deputy did not know another officer had advised the defendants earlier about complying with the MMMA.  So failing to include that info in warrant application could not be deliberate.  Info not imputed here.  No evidence the officers communicated.
* Application for warrant was to state magistrate, rather than the federal magistrate judge, despite fact deputy was detailed to a federal agency.  But deputy's position gave him flexibility to choose whether investigation would go state or federal.   
* No error in failing to suppress evidence. 
* Defendants waived and forfeited chance to challenge sufficiency of indictment.  Issue raised first time on appeal.  Won't fly unless the alleged defect is jurisdictional.  No jurisdictional defect here.  COA cited United States v. Marcinkewciz, No. 12-2441 (6th Cir. Oct. 29, 2013). 

Thursday, February 13, 2014

Escape as Crime of Violence? No!

Way to go, Mr. Geoff Upshaw!  Mr. Upshaw is a member of our WD Mich CJA Panel and got this great victory!

United States v. Covington, 738 F.3d 759 (6th Cir. 2014).

Panel of Judges Rogers, Stranch, and Donald. 

Is prison escape under MCL 750.193 a crime of violence?  No. 

The plea colloquy from the state escape conviction showed that the defendant had left the correction center with permission on a laundry pass and returned ten minutes late. Believing he would be sent back to prison for violating the center's rules, the defendant went out a window, jumped a fence, and ran through a wooded area to escape.

Court applied Descamps

Because the statute gives several ways in which it may be violated, including some escapes that involve the element of breaking and some that do not, the statute is divisible for Descamps purposes.  Modified categorical approach applies. 

Offense here was a breaking-and-escaping offense. 

COA reminds us that the powder-keg theory is no longer persuasive

Court found that breaking and escaping from prison and burglary of a dwelling share only one risk: the potential for discovery and capture.  The COA says this factor is not one to consider post-Anglin.  Even if the Court were to consider such a risk of confrontation, the risk posed by breaking into a home "is considerably greater than the risk posed by breaking out of a prison."  And even if the risks associated with breaking and escaping from prison could be comparable to those associated with burglary, the offense at issue "also criminalizes walking out of an unguarded area by pushing open a partially ajar door.  The statute thus covers a much 'broader swath of conduct' than what might arguably qualify as a crime of violence."

Not a crime of violent.

Judge Stranch concurred:

In Denson, the judge had put the "divisibility" issue under Descamps at the end of the analysis.  The judge now feels that this placement led "to a somewhat redundant analysis."  The proper order for the "analysis after Descamps is to put the 'divisibility' question first."  If a statute is divisible, a court may consider the Shepard documents briefly to determine the alternative offense of which the defendant was convicted.  From that point, the court should apply the same categorical test used for indivisible statutes.

GPS Tracking, Warrants, and Good Faith

OK, life has been moving along post-Jones

Things were good in the Third Circuit.

"The police acted in the face of unsettled law at a time when courts were becoming more attuned to the argument that warrantless GPS surveillance violated the Fourth Amendment. Excluding the evidence here will incentivize the police to err on the side of constitutional behavior and help prevent future Fourth Amendment violations. We therefore conclude that the police actions taken here do not qualify under the good faith exception and hold that the exclusionary rule should apply in this case."

United States v. Katzin, 732 F.3d 187, 214 (3d Cir. 2013).

So no good-faith exception to the warrant requirement. . . .

BUT

On December 12, 2013, the Third Circuit granted rehearing en banc.  Set for May 28, 2014.  I guess we'll just stay tuned.