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 inconsequantial.  Attempts 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. 

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. 

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.   

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.

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.

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.