Shocking! Medical Procedure Shocks the Conscience and Evidence Must Be Excluded

United States v. Booker, No. 11--6311 (6th Cir. Aug. 26, 2013) (for publication). 

Panel of Judges Gilman, Gibbons, and Rogers.  Judge Gibbons dissented. 

Defendant (D) had hidden crack in his rectum.  Police suspected the D had contraband in his rectum and took him to a doctor.  Without the D's consent, the doctor intubated the D for an hour, rendered him unconscious for 20 to 30 minutes, and paralyzed him for 7 to 8 minutes.  Using a finger, the doctor retrieved the crack and turned it over to the officers.

Even if the doctor was acting entirely for medical reasons, the D was under police control; in these circumstances, the procedure must be seen as attributable to the state for Fourth Amendment purposes.  The procedure, to which the D never consented, "shocks the conscience"; the evidence must be excluded. 

Case started with traffic stop.  Police knew the D from prior encounters.  Drug dog alerted near the D.  During pat down, officer noticed D allegedly "clenched his buttocks."  Officer found rolls of currency, but no drugs.  Search of passenger seat revealed baggies with marijuana and powder residue.  Police arrested D for possessing marijuana despite a an insufficiency of actual marijuana to justify the arrest under Tennessee law. 

Post-arrest, the D's actions made the officers believe he had something secreted in his buttocks.  Strip search conducted.  Officer claimed to see a string protruding.  After an altercation, the officers took the D to a hospital.  Doc told D that doc had to conduct the "procedure" (manually removing any drugs from the rectum) b/c the rectum can absorb drugs quickly, which could create a life-threatening situation.  Naked and cuffed, the D refused to submit.  The doc said he had a "duty" to remove any dangerous substance.  Police allegedly did not direct the doc to do anything. 

D contracted his muscles to preclude the doc's "examination."  Doc ordered injection of a muscle relaxant.  Encounter escalated.  Nurse administered a sedative and paralytic agent intravenously.  D intubated to control breathing.  During the paralysis, the doc removed the rock of crack (> 5grams).  Officer took the rock as evidence. 

Indictment followed.  D argued the officer lacked probable cause to arrest him for marijuana possession and that post-arrest treatment was unreasonable under 4th Am: invasion of privacy, dignity, and "liberty to refuse medical treatment."  Dist ct denied motion.  Jury convicted D.

Conclusions:

D’s "Fourth Amendment rights were violated. The officers brought [D] to [the doctor] and stood by while [the doctor] performed a highly intrusive and dehumanizing procedure on [D] without his consent. On the facts of this case, [the doctor's] actions are attributable to the state government and were so unreasonable as to shock the conscience. Because this conduct is sufficiently deliberate and culpable, suppression of the evidence was a proper remedy."

 

* Sufficient nexus to attribute doc's actions to police. 

 

* No solid evidence D consented to "procedure."  At most there could have been consent to an undrugged digital rectal examination, so D could avoid paralysis.  Doc admitted the D did not consent to paralysis. 

 

* No reasonable officer "could believe that, without direction from the police, and over the clear refusal to consent by a conscious and competent patient, a doctor could lawfully go ahead and perform such a procedure. Even if [this doctor] was motivated by benevolent medical ideals, his actions in paralyzing and intubating [the defendant] and performing a rectal examination without his express or implied consent constitute medical battery."

 

* Police used doc as tool to search D's person. 

 

* "Procedure" here unreasonable.  From a legal standpoint, "investigative conduct that would shock

the conscience for purposes of the Due Process Clause is 'unreasonable' for purposes of the Fourth Amendment."

 

* Factors to consider regarding constitutionality of forced surgery: 1) extent of procedure's threat to safety/health of individual; 2) extent of intrusion upon individual's dignitary interests in privacy and bodily integrity; 3) community's interest in fairly and accurately determining guilt or innocence.  "In addition, when there was time to obtain a court order and the police declined to seek one, the suspect’s privacy interests should be given particular solicitude."  These factors, analyzed in the circumstances presented, compelled the conclusion that the 4th Am was violated. 

 

* Exclusion necessary.  No good-faith exception to save evidence from exclusion: "Based on the circumstances of this case, a reasonably well-trained officer and physician would have known that the search was unlawful."

 

Judge Gibbons dissented.

 

She did not believe the doctor was a state actor.

 

She found that "[t]he district court reasonably found that the officers took [the D] to the emergency room because they believed he had a serious health problem.  There is no evidence that the officers had met [the doctor] prior to this incident, knew he would be at the emergency room they took [the D] to at that particular time of day, or knew that he had previously worked with the Sheriff’s Department.  In the absence of a record establishing these facts, the premise that [the doctor] was a mere 'tool' of the officers is unsupportable."

 

 

OK, These Cases Are Just Getting Confusing

OK, X (below) was good, but same day, United States v. Joiner, No. 12--4508 (6th Cir. Aug. 20, 2013) (for publication), comes out.  Judges Boggs, McKeague, and Beckwith (S.D. Ohio).  This latter opinion comes to the opposite conclusion from that expressed in X: the new FSA mand mins do not apply. 

Also on the same day, the COA filed an opinion-correction letter in X, a letter not available to the public.  So the X opinion has been "corrected," but not publically.  And the COA has allowed an extension of time for the gov to seek rehearing in X. 

So we wait. . . .

Lightening Strikes Twice: Blewett Revived!

OK, oral argument in Blewett set for Oct. 9.  In the meantime, we have United States v. X, No. X (6th Cir. Aug. 20, 2013) (for publication).  Panel of Judges Keith, Cole, and Rogers.  Judge Keith penned the lead opinion.  Judge Cole concurred.  And Judge Rogers dissented. 

 

Essentially, the defendant argued that the statutory mandatory minimums promulgated by the FSA applied to him, making him eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2).  Court found that the defendant satisfied the first sentence-reduction eligibility requirement because his sentence had been based on the Guidelines.  The plea agreement had said that the parties agreed to recommend that the district court impose a sentence within the guideline range.  During the sentencing hearing, the district court had said that “[t]he parties agree to recommend that the Court impose a sentence within the range determined pursuant to the advisory sentencing guidelines” and that “the appropriate sentencing range under the guidelines according to the sentencing table is 130 to 162 months.”  The district court started with the drug-quantity table in 2D1.1.  The court then relied on 3E1.1 and 5K1.1, cited in the plea agreement, to calculate the defendant’s advisory range as 130 to 162 months; the district court sentenced the defendant to 130 months.  This imposition of sentence pursuant to the plea agreement and derived from an advisory range under the Guidelines means the sentence was based on an advisory range.

 

COA then looked to 5G1.1 to consider impact of mandatory minimum.  The COA found that the section was silent as to which mandatory minimums to apply, and that the Supreme Court has not spoken on the issue.  

 

The court noted that under the gov's interpretation, defendants whose original advisory ranges were slightly above the old statutory floor, but who did not receive substantial-assistance downward departures, would be eligible for sentence reductions under § 3582(c)(2).  But defendants whose original ranges were at the statutory floor, who rendered substantial assistance, would not be eligible for reductions.  "Such perverse results are clearly inconcsistent with other Guidelines provisions."  Here, plugging the new mandatory minimums  and amended guidelines into the defendant's calculations would yield a sentence of 70 months instead of 130.  The court found that applying the new minimums "is the only way to give effect to Congress's intent to achieve consistency with other Guidelines provisions, especially with regard to which kinds of defendants---cooperative and uncooperative---are eligible for sentence reductions." 

The COA distinguishes Carradine and Dorsey.  These two cases "stand for the proposition that defendants who were sentenced after August 3, 2010, [the FSA's effective date] were entitled to be sentenced under the new FSA minimums at their original sentencing hearings."  The COA here admonishes that 3582(c)(2) hearings are not plenary proceedings like the latter original sentencing hearings.  Carradine and Dorsey did not address the application of mandatory minimums in the 3582(c)(2) context. 

A reduction here would be consistent with Guidelines policy statements.  The applicable guideline range here "automatically incorporates the statutory minimums in the cocaine base sentencing statutes . . . via 1B1.1(a)(8), which interlocks with 5G1.1---the section of the Guidelines that incorporates the statutory minimums."  As the new minimums are the applicable minimums in the 1B1.10(b)(1) calculation, Amendment 750 lowers the applicable guideline range.  So a sentence reduction is consistent with the Sentencing Commission's policy statement in 1B1.10(a)(2)(B).  The statements in application note 1(a)(A) to 1B1.10 do not change this reasoning. 

The COA notes that "[e]ach time the Supreme Court has heard cases involving the FSA, it has expanded the class of defendants who are entitled to or eligible for the benefits of lowered penalties under the FSA." 

Judge Cole concurred:

He would resolve the case on narrower grounds.  The sentence here was based on a subsequently lowered guideline range, rather than a mandatory minimum.  But Judge Cole would hang his hat on the substantial assistance.  The 5K "effectively 'waived' the mandatory minimum and permitted the district court to impose a sentence based on [the] otherwise-applicable guideline range."  This approach "obviates the need to delve any further into the controversy surrounding the retroactive application of the Fair Sentencing Act."  Judge Cole would wait for the en banc Blewett proceedings before saying more. . . . 

Judge Rodgers dissented:

Notes that Blewett could be resolved with this opinion if the en banc court were to accept it.  Believes that at this time the panel is bound by Hammond.  Does not see substantial assistance as getting around this block. 

Strange Bedfellows

OK, I apologize for the long break in posts.  But I know a lot of you are following the mandatory-minimum discussions rumbling around now.  Here is a press release on the American Correctional Association's support of reform.  Wow.  These are correctional officers! 

Says a lot. 

http://www.famm.org/newsandinformation/PressReleases/ACAEndorsesMandatoryMinimumSentencingReform.aspx

Wow. New-trial motion granted; decision affirmed.

United States v. Lewis, No. 12-3262 (6th Cir. April 16, 2013) (not for publication).

Panel of Judges Suhrheinrich, Moore, and Gibbons.

Fire killed a number of children and injured other people.  Defendant charged with arson resulting in death, a violation of 18 U.S.C. 844(i).  Jury convicted defendant.  Defendant moved dist ct for new trial on grounds the verdict was against the manifest weight of the evidence.  Dist ct granted motion and issued 95-page opinion.  Gov appealed.  COA affirmed. 

* Dist ct found a key witness's testimony internally inconsistent, unreliable, and lacking corroboration.  This witness had a 30-year criminal history, mental-health problems, only a sixth-grade education, and a long history of incarceration and time in state hospitals.  No phone records connecting this person, allegedly close to the defendant, with the defendant.  Witness had received benefits from ATF, so had reasons to lie. 

* Dist ct mistrusted the inmate informants.  Discounted the testimony of other witnesses for a variety of reasons. 

* COA sees dist ct as a sort of "thirteenth juror." 

* "The district court properly evaluated the weight and credibility of all of the evidence adduced at trial and its determination that the verdict was against the manifest weight of the evidence was not an abuse of discretion. Sitting as the thirteenth juror, the district court did not abuse its discretion in concluding that many government witnesses, including Jackson, the inmate informants, and community witnesses testifying to Lewis’s involvement and possible motive, were incredible."

 

* "Although we make no statement as to whether such proof could sustain a guilty verdict, we hold that the district court did not abuse its discretion in determining that the guilty verdict in this case was against the manifest weight of the evidence.  In light of our deferential review of orders granting motions for a new trial, the district court’s thorough and thoughtful review of the evidence, and its superior position to evaluate the credibility of witnesses, we affirm the judgment of the district court.

Speedy-Trial Case Worth a Look

Another one from last week about which I just blogged on 6th Cir. blog.

US v. Heshelman, Nos. 10-1049/1223 (6th Cir. April 12, 2013) (not for publication).

Panel of Judges Clay, Gibbons, and White.

Dist ct said that an approximately three-year delay b/t indictment and trial not a speedy-trial violation. COA reversed.

Money laundering and fraud.

Indictment filed in 2006 (shortly before S of L expired) and was sealed, so gov could continue investigating. But gov didn't do much---just kept a journal of the defendant's contacts with the alleged victims.

Defendant one in Switzerland. Issue with potential extradition. Defendant got in touch with FBI agent b/c knew of investigation, which was hampering his business. Agent did not inform defendant of indictment, which had been filed at that point. Gov finally requested extradition from Switzerland in 2009. Trial commenced about four months later. Jury convicted on all counts.

A second defendant was told by FBI of warrant for his arrest in '08; defendant said he wanted to cooperate. Pleaded guilty about six months later.

First defendant complained of speedy-trial violation b/c of three-year delay in arrest and trial. Second defendant complained b/c gov knew of his whereabouts, but decided not to proceed with his trial until first defendant arrested.

Factors:

* Length of delay and defendant's assertion of rights. Trial delay of a year or more generally presumed prejudicial and triggers consideration of other factors. Gov conceded this presumption and that appellant asserted speedy-trial rights in timely manner.

* Reason for delay. Gov conceded it followed a "wait-and-see" course and sought to arrest the first defendant when the latter returned to the US to see family. Extradition difficult and gov wanted complete control of prosecution. But gov obligated to act diligently, even when a defendant is in a foreign country. Here, actively seeking extradition would not have been futile: there was an extradition treaty with Switzerland. Gov just didn't pursue extradition b/c didn't want Switzerland to place conditions on the extradition. But gov made only one attempt to see what conditions might be. Switzerland had been responsive. But gov just waited for the defendant's return to the US. Can't wait indefinitely. Defendant didn't flee the jurisdiction to avoid the charges; he had lived in Switzerland before the alleged scheme began.

* Prejudice. Presumption here, and gov didn't rebut.

First defendant's speedy-trial rights were violated.

As to second defendant:

* Gov could have arrested him at any time. Gov conceded presumptive prejudice. Also conceded timely assertion of rights.

* Once indictment unsealed and warrant for arrest issued, defendant two turned himself in.

* Gov also admitted that it delayed b/c if defendant two were tried alone he might prevail by just blaming defendant one. Gov interest in trying alleged co-conspirators together does not automatically justify delay. And gov did not delay while diligently searching for defendant one, as already discussed. Gov was just delaying extradition of defendant one.

Second defendant's speedy-trial rights violated.

Reversed and remanded with instructions to dismiss indictment with prejudice.

Concurrence by Judge Clay:

Agrees that speedy-trial rights violated. Looks more closely at reason for delay. What is standard of review? Considerable deference, according to SCOTUS. . . . Like clear-error review.

Sell Victory

Just posted to the 6th Cir. blog.  Big victory on involuntary medication!

US v. Grigsby, No. 11-3736 (6^th Cir. April 11, 2013) (for publication).

Panel of Judges Merritt, McKeague, and Stranch.

Dist ct entered order allowing gov to involuntarily medicate a defendant who had been diagnosed as paranoid schizophrenic to restore competency. Given the circumstances, the COA reversed the order and found that the defendant’s liberty interest in avoiding involuntary medication outweighed the government’s interest in prosecution.

Defendant had been charged with three counts of unarmed bank robbery.

Defendant was middle aged, homeless, and diagnosed with paranoid schizophrenia. Incompetent to stand trial. Refused oral medicines for schizophrenia. Not gravely disabled or a danger to himself or others or to the safe functioning of the facility, so no involuntary medication under Washington v. Harper, 494 U.S. 210 (1990). So gov sought involuntary medication under Sell. Got order. Interlocutory appeal by defendant followed.

Key points:

· There was an important gov interest in bringing defendant to trial. Bank robbery is serious.

· But the inquiry is “fact intensive.”

· Potential for lengthy civil commitment tempers gov’s interest in trial. Two potential courses for commitment and both should be considered: under 18 USC 4243 (not guilty b/c insane) and 4246 (hospitalization after time for release).

· Defendant might be found not guilty by reason of insanity, even if competence is restored. Undermines gov’s interest in prosecution.

· If involuntarily medicated, the defendant would still be in custody for about the same period as the advisory guideline range. Lessens gov interest in prosecution.

· Involuntary medication should be rare.

· Side effects of meds could affect fairness of trial. Defendant might have to stand trial and be subject to involuntary movements, the inability to stay still, a loss of dignified carriage in front of the jury, and difficulties assisting counsel, all caused by the meds. Side effects can be irreversible.

COA reviews several cases and compares and distinguishes them.

COA points out that “victory” for either party may be a double-edged sword. . . .

Case remanded with anticipation of civil-commitment proceedings.

Judge McKeague dissented. Disagrees with the special-circumstances analysis. Civil commitment is speculative. Defendant unlikely to prevail on insanity defense. Disagrees with majority’s discussion of potential sentence and potential side effects.