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United States v. Lewis, No. 12-3262 (6th Cir. April 16, 2013) (not for publication).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US v. Heshelman, Nos. 10-1049/1223 (6th Cir. April 12, 2013) (not for publication).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.

Stalking = Violent Felony for ACCA

Just posted on 6th Cir. blog. . . .

This case came out about a month ago, but I think it's worth noting.

United States v. Johnson, No. 11-5769 (6th Cir. Feb. 20, 2013) (for publication). Panel of Judges Boggs, White, and Black (S.D. Ohio).

Denial of suppression motion affirmed (traffic stop).

Use of Kentucky stalking conviction as violent felony for ACCA purposes affirmed.

I'm a little pressed for time, so I won't go into the suppression issue. Nothing earth shattering.

Prior Conviction:
* Kentucky first-degree stalking (Chapter 508 of Kentucky Penal Code, Ky. Rev. Stat. 508.104).
* Stalking---new issue for Sixth Cir., but COA looks to other circuits for guidance here.
* This statute does not necessarily require threatened use of violent force, so doesn't count for ACCA under force provision.
* But counts under serious-potential-risk provision. Potential for confrontation that could result in bodily injury. COA compares stalking to extortion.

6th Cir Policy on e-Gadgets

The 6th Cir. has a new policy on electronic gear.  Released last month:

http://www.ca6.uscourts.gov/internet/court_calendars/documents/Electronic_Device.pdf

More on the CP Restitution Front

We've discussed CP restitution in the past (see Dec. 7, 2012 post).  Sixth Cir. continues on its trajectory of requiring causation. 

 

In United States v. Gamble, Nos. 11-5394/5544 (6th Cir. Feb. 27, 2013) (published) (panel of Judges Rogers, Kethledge, and Marbley (S.D. Ohio)), the Court confirmed that "[i]n order for restitution to be granted under 18 U.S.C. § 2259, the Government must show that the costs incurred by the victim were proximately caused by the defendant’s offense. This conclusion is supported both by our precedent and by an independent reading of the statute."

 

COA looked at 18 USC 2259, which governs mandatory restitution in child sex cases.  COA also looked back at United States v. Evers, 669 F.3d 645 (6th Cir. 2012), in which the Court held that all restitution awards under 2259(b)(3) require the gov to show proximate cause.

 

The 6th Cir. concluded:

 

"Because the district courts did not require a showing of proximate cause between the losses and the defendants’ offenses, and this circuit’s case law requires such a showing, the cases must be remanded so that this analysis can take place. On remand, moreover, the district court must reconsider the extent to which the defendants must pay restitution where they share responsibility for Vicky’s injuries with hundreds of other child pornography viewers."

 

Defense counsel had objected in the dist ct, arguing that many of the alleged damages to "Vicky" occurred before the pictures were found in the defendant's possession.  Argued causation could not be shown.  Also argued that including "future costs" was speculative. 

 

The district court found that the evidence showed a total loss amount for Vicky of $1,002,766.85, and ordered restitution in that amount, an amount that was to be reduced as other money was collected.

 

The COA, however, affirmed that "[t]he proximate cause requirement recognized in Evers consists of (1) a cause-infact requirement—i.e., a showing that the defendant’s conduct actually caused the victim’s losses—and (2) a requirement that the cause be proximate."

 

The COA gave strong, concise support for its reading of 2259(b)(3)(F): that section "states that the victim’s losses include costs incurred for 'any other losses suffered by the victim as a proximate result of the offense.' The plain meaning of this phrase in context indicates that it is equally applicable to the previous five subsections listing specific costs like medical services and lost income. The 'any other losses' catchall is meant to close loopholes. There is no reason that the catchall would be limited by a proximate cause requirement while the specified categories of losses would not."

 

Also, "[i]n the definition of 'victim,' to whom restitution is owed, the statute states that the victim must be “harmed as a result of a commission of a crime under this chapter.' . . .  As other circuits have pointed out, 'this language implies that the government must establish a causal connection between the defendant’s offense and the harm to the victim.'"

 

Cause-in-fact and proximate cause required.  Proximate cause requires reasonable foreseeability. 

 

On the issue of joint-and-several liability, the COA saw a link with proximate causation: "The question of joint and several liability bears some relation to whether the causation is proximate, however, because one of the policy strands in the proximate cause analysis is the avoidance of unlimited liability for a single action."

 

At this point, the COA discussed limiting the losses attributable to Old Lady Leary's cow and the lantern in the shed that led to the Chicago fire.

 

Apportioning restitution, the COA concluded, makes more sense: "liability is to be apportioned in a reasonable way that leads to full restitution, without eviscerating the causation requirement."

 

Interesting note: "Vicky" seems to have "collected almost half of the $1.2 million in losses that she has claimed to date."   

 

The COA explained that a defendant generally cannot cause harm prior to his or her offense date. 



The gov proposed a system for apportionment.  The COA saw this system as a possible solution; the Court did not mandate its adoption, but found it consistent with the statute.  The Court left the issue to the dist ct on remand.  Remand was to allow for consideration of new evidence and argument. 

One defendant argued his prison sentence was substantively unreasonable.  The Court rejected this argument.  He got 82 months, which was within the GLs. 

Judge Kethledge concurred in part and in the judgment:

* He believes in "a more flexible and open-ended determination of each defendant's share" of the alleged losses.

* To him, "an inquiry into whether a particular defendant actually caused a victim’s generalized losses—by which I mean losses resulting from the actions of many violators of the child pornography laws—is an inquiry into the unknowable."

 

* He admonished that "[c]asting legal questions in such terms is only a hindrance to clear thinking; and thus the choice before us is either to abandon enforcement of the statute in these cases, or to adopt a different rule of actual causation for this context. I would take the latter approach and adopt the First Circuit’s rule of aggregate causation (though only for purposes of determining actual cause)."
 

* He cautioned that "nothing in the statute appears to support multiple full recoveries for the victim. And multiple recoveries would be compelled under an approach where multiple defendants are each found to cause all of the victim’s losses.

 

* Agreeing that joint-and-several liability is impractical, he approved of apportioning losses, but recognized the problems with such a task.  His approach would be flexible.  He "would case the issue in terms of the defendant's comparative moral fault."  Various factors to consider. 

Great CP Result: Sentence Substantively Unreasonable

United States v. Melchor, No. 12--1300 (6th Cir. Feb. 14, 2013) (not for publication).

Panel of Judges Cole, Griffin, and Gwin (N.D. Ohio).

360-month sentence.  GLs were 210 to 262. 

Receiving CP.

COA vacated and remanded: sentence was substantively unreasonable.

The defendant was 36 years old.  Met a 12-year-old girl on-line and became Facebook friends.  They had on-line contact that was sexual in nature (sexual discussions and such).  Defendant was a registered sex offender.  The mother of the girl discovered the relationship and contacted police.  Police executed a warrant and discovered CP.  The defendant confessed an interest in young girls.  The defendant pleaded guilty to receiving CP.  The gov agreed not to charge him with the conduct related to the 12-year-old girl. 

Total offense level 35.  Enhancement b/c of "pattern of activity": prior exploitation of a minor.  PSR recommended sentence of 480 months.  Gov recommended GL sentence.  Defendant argued for a sentence below the GLs, or at least within them.  Dist ct gave 360-month sentence.  Dist ct agreed with PSR that GLs did not account for the behavior with the 12-year-old girl and that the defendant was not amenable to rehabilitation.

Points:
* Potential for recidivism may provide grounds for variance.  Defendant here did not appear amendable to rehab.  Dist ct did not abuse its discretion in finding that potential recidivism warranted upward variance. 
* Conduct with the 12-year-old girl was accounted for in GLs (5-level enhancement).  This conduct was covered---even if other conduct also supported the enhancement.  So this conduct was not a justification for the upward variance.   
* Defendant's conduct was not outside of what is generally covered by the GLs. 
* The COA could not tell how much of the upward variance was based on potential recidivism and how much was based on the conduct with the girl, so remand was necessary. 

J. Griffin dissented.

Dissent:
* Given totality of circumstances, the sentence was substantively reasonable. 
* GLs provide for upward departure for under-represented criminal history. 
* Defendant presented a high risk of recidivism---more so than "the average sex offender."