Abbott means what it says. . . .

United States v. Thomas, No. 09-3827 (6th Cir. Dec. 13, 2011) (unpublished).  Panel of Judges Merritt, Moore, and Mays (W.D. Tenn.).

Conviction for possession of more than 1,000 kilograms of marijuana with intent to distribute, and for possessing a firearm in furtherance of a drug-trafficking offense.  Sentence of 151 months on the drugs + 60 months consecutive for the gun. 

Defendant argued it was error to impose the 60-month consecutive sentence given the 10-year minimum sentence for the drug count.  Defendant cited United States v. Williams, 558 F.3d 166 (2d Cir. 2009), in which the court concluded that the 924(c) sentence did not apply when the defendant was subject to a higher mandatory minimum for the predicate drug offense.  That was the old United States v. Almany, 598 F.3d 901 (6th Cir. 2010), argument.  Now, however, the S. Ct. has made it clear that the 924(c) sentence applies and is consecutive regardless of the mandatory minimum for the predicate offense.  Abbott v. United States, 131 S. Ct. 18 (2010).  Sentence affirmed.    

Fingerprint Evidence and Plain-Error Review of Sentence

United States v. Watkins, No. 09-3688 (6th Cir. Dec. 12, 2011) (unpublished).  Panel of Judges Gilman, Rogers, and Stranch.

Armed robbery of a credit union.  Conviction affirmed, but sentence vacated.

Procedural Highlights:

* Orally pronounced sentence on one count exceed the statutory maximum sentence and then conflicted with the minute order and the written judgment.

* Before the end of the sentencing hearing, the defendant asked the district court to direct the clerk's office to file a notice of appeal for him.  The notice, however, was never filed.  The defendant filed a pro se notice months later.  The district court then ordered the clerk's office to file a notice of appeal nunc pro tunc to the date of sentencing.

* The appellate court found that the district court lacked the authority to enter the nunc pro tunc order and dismissed the appeal for lack jurisdiction.

* The defendant filed a pro se 2255, which the gov supported, as the gov recognized that the defendant was not at fault for the untimeliness of the notice of appeal.  Sentencing discrepancy not addressed.

* To remedy the notice-of-appeal issue, the district court vacated its judgment and reentered a judgment, which matched the earlier written judgment. 

Conclusions of Court of Appeals:

* Usually, an oral pronouncement of judgment controls.  Oral sentence, however, constituted technical error b/c it exceeded the statutory maximum sentence.  Written judgment that would have corrected this error was issued two days after the Rule 35(a) deadline, however.  Because the defendant did not raise the issue on appeal and because the COA vacated the sentence, the court did not decide whether or not relief based on the discrepancy was in order.

* Admission of fingerprint evidence was not an abuse of discretion.  At CDAM and at local panel trainings, we've talked a little about forensic evidence.  In this case, the Sixth Circuit discussed the National Research Council's Strengthening Forensic Science in the United States: A Path Forward of 2009. 

* At the Daubert hearing, the gov fingerprint examiner testified that when the ACE-V method of identifying latent fingerprints is properly used by a competent examiner the error rate for identification is zero.  The defendant challenged this assertion.

* The COA found two problems with the challenge.  First, the National Research Council's report from 2009 was not before the district court in 2005.  Second, error rate is only one factor to consider.  Even if the gov examiner was wrong about it, that mistake would not negate the scientific validity of the ACE-V method given the other factors the district court had to consider, and which the defendant did not challenge on appeal. 

* Plain-error standard applied to procedural sentencing claim.  COA found that the sentencing "court's failure to explain [the defendant's] sentence constituted plain error."  No reasoning given for the sentence.  The sentencing court did not address the defendant's argument that the sentence was disproportionate to another bank robber's sentence.

* The COA distinguished United States v. Vonner, 516 F.3d 382 (6th Cir. 2008), as in that case the court had offered "at least some" explanation for the sentence imposed.  There was no explanation in the case at hand. 

FBA SCOTUS Review Next Week

The WD Mich FBA is hosting their annual S Ct brown bag on Wednesday, Dec. 14, at noon in the jury assembly room (2nd floor of the fed cthouse).

http://www.westmichiganfederalbar.org/Federal_Bar_Calendar.php

See you there!

Good-Fath Exception and Form Affidavits

United States v. Moore, No. 11-5663 (6th Cir. Nov. 22, 2011) (published).

Panel of Judges Moore, Rogers, and Hood (E.D. Ky.).  Judge Moore filed a separate concurrence.

Felon-in-possession case.  Defendant moved to suppress the evidence.  Dist ct denied the motion.  Defendant appealed. 

Government acknowledged at oral argument that the search-warrant affidavit was "imperfect":
* Not detailed,
* CI not named (nor was the CI named to the magistrate),
* No cocaine quantity specified,
* Detective had more information, but did not include it in the affidavit.

Yet the appellate court found that "the warrant contains enough information to support the magistrate's finding of probable cause." 

The warrant/affidavit:
* Included statements from a CI,
* Included information regarding the CI's reliability and basis of knowledge,
* Used recent info (not stale),
* Established a nexus b/t the alleged criminal activity and the place to be searched.

Essentially, officers received info from a CI that an individual was selling cocaine from an apartment.  The warrant was mostly boilerplate.  (The affidavit was essentially a form affidavit widely used in the county.)

"Although a more detailed affidavit would have better served the purposes of the warrant requirement, the warrant in this case was valid." 

The affidavit stated that the CI had given information in the past that had led to two drug seizures, and the CI had seen personally the drugs and been at the residence in question.  This information satisfied the requirement that a CI's allegations "be bolstered by additional information in an affidavit." 

The appellate court does admonish that its "holding does not mean that the magistrate was required to issue the warrant, particularly since the affidavit was minimal in the ways conceded by government counsel."  The warrant requirement, the court continues, "puts primary responsibility on the magistrate to determine probable cause, and if the affiants repeatedly provide the minimum of information, magistrates would be acting within their discretion to demand more."

The appellate court goes on to say that, regardless of any defects in the warrant, the good-faith exception would save the warrant.  "Similar warrants have been upheld in numerous cases." 

Judge Moore's concurrence is interesting.  She would uphold the search only b/c of the good-faith exception.  She admonishes that "the majority's opinion does not constitute an open invitation to continue blind reliance on warrants of this nature."  Recognition of the problems with the warrant here, by the court and by the government, "provides notice that continued reliance on similar warrants, based on form affidavits with little to no particularized detail, may in the future result in inadmissible evidence without the backstop of the good-faith exception." 

Judge Moore continues, "the form affidavit's repeated use---with minimal to no unique detail and no further explanation under oath to the issuing magistrate---has persisted to the point of constitutional concern."  On the subject of unnamed CIs, Judge Moore explains that "when the identity of the informant has not been disclosed in the affidavit or to the magistrate, other indicia of reliability beyond the affiant's personal knowledge or past reliability---such as corroboration or a substantially detailed description of the alleged conduct---have also generally been required." 

Judge Moore points out that the officer did take steps to corroborate the CI's information.  (At the motion hearing in the district court, the detective revealed that he had previously set up two undercover buys b/t the CI and the target of the investigation at the apartment identified in the warrant application, and the detective had conducted surveillance on the apartment to confirm the defendant's identity.)  This additional investigation and its exclusion from the affidavit may suggest a practice of blind reliance on form affidavits in the county.  The concurrence concludes, "The practice of skirting this constitutional requirement in Shelby County is unacceptable and unsustainable.  Should officers wish to continue relying in good faith on issued warrants, they must conform their conduct to the Fourth Amendment's requirements." 

SCOTUS Grants Cert to Resolve FSA Issues

Sorry for the delay in posting. 

The Supreme Court has granted cert in two cases to resolve the circuit split over FSA "pipeline" cases (cases involving pre-FSA conduct and post-FSA sentencing).  I posted to the Sixth Circuit blog earlier; here is the info again:

The Supreme Court has granted cert in two FSA "pipeline" cases to resolve the circuit split over whether or not the FSA applies to defendants whose conduct pre-dated the FSA, but who were sentenced after the FSA was enacted.

The cases are Hill v. United States, No. 11-5721, and Dorsey v. United States, 11-5683.

Question presented in Dorsey:

"Did the Seventh Circuit err when, in conflict with the First and Eleventh Circuits, it held that the Fair Sentencing Act of 2010 does not apply to all defendants sentenced after its enactment?"

Dovetailing with the FSA theme, the Sixth Circuit issued its decision in United States v. Thigpen, No. 10-3127 (6th Cir. Nov. 21, 2011) (unpublished), last week. Court again followed Carradine and denied FSA relief to the defendant, who was sentenced on January 28, 2010. The Court did state that the defendant "was properly sentenced under the law applicable at the time his crimes were committed." This language is broad, but given the defendant's sentencing date, it is dicta in "'pipeline" cases (defendants sentenced after the FSA was enacted, whose offenses pre-dated the FSA).

CDAM: Traverse City 2011

Last week's CDAM conference in Traverse City was great.  Thank you, Western District panel attorneys (and others!) who attended the Federal Session on Thursday.  Dick and I hope everyone got something out of the session. 

I will not be posting much this week, but I will be back on-line ASAP! 

Miranda, and a Short Reminder Regarding Corpus Delicti

The picture below shows the derelicti ship that has sailed.  Sorry . . . couldn't resist.  :) 

United States v. Brown, No. 10-6458 (6th Cir. Nov. 1, 2011) (unpublished).  Panel of Judges Sutton, McKeague, and Jonker (W.D. Mich.) (yes, our own Judge Jonker sat by designation). 

Defendant appealed his conviction and sentence for being a felon  in possession of a firearm.  The Court affirmed. 

Facts and Procedural History:
Robbery of home.  Police read the defendant his Miranda rights and secured a signed waiver.  The defendant confessed he had taken the missing gun.  After a grand jury indicted the defendant for being a felon in possession of a firearm, the police questioned the defendant again (first reading the defendant his Miranda rights and again securing a waiver).  The defendant's story changed, but at the end of it, he still admitted possessing the missing gun.

Before trial, the defendant sought to suppress the statements.  Jury convicted the defendant.  But the district court granted the defendant's post-verdict motion for acquittal, finding that the only pieces of evidence linking the defendant to the crime were the defendant's statements: his uncorroborated confessions. 

The government appealed, and the Sixth Circuit reversed, finding that sufficient independent evidence corroborated the defendant's statements.  On remand, the district court found that the defendant's prior convictions made him an armed career criminal under the ACCA.  The district court imposed a below-guidelines sentence of 15 years, the mandatory minimum.  The defendant appealed.

Conclusions:
* Corroboration: defendant sought to relitigate the issue of whether sufficient evidence corroborated the confessions.  The appellate court, however, found that "that ship has sailed."  The Court had decided the issue in the previous appeal; the defendant never sought rehearing; there was no change in controlling authority.  The previous decision remains binding.

* Suppression of statements: the defendant's alleged cognitive infirmities and/or possible drug use at the time did not render his waiver of Miranda invalid.  Nothing in the record suggested that the defendant did not understand his rights.  No coercive police behavior. 

* ACCA: defendant qualified as an armed career criminal.  The defendant had three prior convictions for aggravated burglary from Tennessee.  Application of the ACCA did not offend the Fifth Amendment (due process and equal protection) or the Eighth Amendment (cruel and unusual punishment).  The Court was clear: "We have seen this movie before, and each time it ends badly for the defendant."