Sunday, July 24, 2016

Tenth Circuit constructive-possession law gets a makeover

The Tenth Circuit Criminal Pattern Jury Instructions have long defined constructive possession without any reference to the person's intent to exercise dominion or control:

"A person who, although not in actual possession, knowingly has the power at a given time to exercise dominion or control over an object, either directly or through another person or persons, is then in constructive possession of it."

Instruction § 1.31. This instruction was, until last week, consistent with Tenth Circuit law. See United States v. Colonna, 360 F.3d 1169, 1179 (10th Cir. 2004) ("[i]t is not necessary to show that the defendant intended to exercise . . . dominion or control").

Last week, the Circuit overruled Colonna:

"We thus hold that constructive possession exists when a person not in actual possession knowingly has the power and intent at a given time to exercise dominion or control over an object."

United States v. Little, No. 15-2019, 2016 WL 3902581 at *3 (10th Cir. July 19, 2016) (emphasis added).

This brings the Tenth Circuit in line with "every other circuit but one that has considered the issue," as well as with Henderson v. United States, 135 S.Ct. 1780 (2015).

And this means that the pattern instruction is deficient and must be modified for future cases. Unfortunately for Mr. Little, the Court found the deficiency harmless in his case.

Sunday, July 17, 2016

The art is not the artist! Above-GL sentence based on music video is substantively unreasonable.

Was the person who painted this picture inclined towards violence? Does this painting prove that he liked violence? Caravaggio certainly had his share of trouble with the law, but nobody seriously believed that his Judith Beheading Holofernes indicated any murderous intent on his part.

Jumping ahead a few centuries, let's ask the same questions about the images in this music video:

Are the performers in this video inclined towards violence? Does this video prove that they like violence? A district court judge in Puerto Rico thought so. And thus the judge imposed a 96-month sentence on one of the performers---a gun defendant whose advisory guideline range was 24-30 months. According to the judge, this video was "objective evidence" that the defendant's illegal possession of an automatic weapon "was not a mistake." The video was "visual confirmation" of the defendant's "inclination as to violence, his liking to violence."

"[T]his is an individual who makes a life . . . not only carrying this kind of firearm, but also preaching . . . the benefits of having this kind of firearm, the use you can give to them, expressing how you kill people, expressing how you don't care about human life."

The First Circuit reversed, finding the sentence substantively unreasonable:

"In this case, the sentencing court confused the message with the messenger. That led the court to blur the line between the artistic expression of a musical performer and that performer's state of mind qua criminal defendant."

"Implicit in this rationale is the assumption that the lyrics and music videos accurately reflect the defendant's motive, state of mind, personal characteristics, and the like. But this assumption ignores the fact that much artistic expression, by its very nature, has an ambiguous relationship to the performer's personal views. That an actress plays Lady Macbeth, or a folk singer croons "Down in the Willow Garden," or an artist paints "Judith Beheading Holofernes," does not, without more, provide any objective evidence of the performer's motive for committing a crime, of his personal characteristics (beyond his ability to act, sing, or paint, as the case may be), or of any other sentencing factor."

For a deeper dive into the unjustness of treating violent lyrics and imagery in modern hip-hop and other music as autobiography, check out Killer Mike's (and other rap scholars') amicus brief on the history and artistic legitimacy of rap.

Friday, July 15, 2016

If this isn't a rubber stamp - what is?

Thirty-two years ago last week the Supreme Court decided Leon. And that decision held that, in considering whether to sign a warrant, a magistrate must "not serve merely as a rubber stamp for the police." United States v. Leon, 468 U.S. 897, 914 (1984). Are magistrates meeting that requirement?

Using the only data that is available - warrants for wiretaps, FISA warrants and delayed-notice warrants establishes that over 99% of the warrants requested in those areas were approved without any modification. Starting with warrants for wiretaps - according to the "Wiretap Report 2015" released by the United States Courts, "[a] total of 4,148 wiretaps were reported as authorized in 2015, with 1,403 authorized by federal judges and 2,745 authorized by state judges." If 4,148 were authorized how many were denied? "No wiretap applications were reported as denied in 2015."

How about FISA warrants? According to the Department of Justice, 1499 applications were made to the FISC court in 2015. Of those 1,457 requested to included a request to perform electronic surveillance. Of those 1,457 applications one was later withdrawn by the government. Of the remaining 1,456 applications, none were denied, "in whole, or in part."

It is probably better with delayed-notice search warrant requests, right? Maybe a little. According to the Administrative Office of the United States Courts 2014 report, of the 7,627 warrant requests made for delayed-notice search warrants 43 were denied and 64 were granted with some modification. That means that approximately one half of one percent of the application for delayed-notice warrants were denied, and less than one percent that were approved were even approved with some modification. That means of the 7,627 delayed-notice warrants, 99% were approved without any modification. Interestingly, the jurisdiction with the highest number of applications was the District of Kansas, with 909 requests. This was 170 applications more than the second highest district, the Southern District of California with 739.

With numbers like this, maybe it is time to revisit Leon and ensure that the Leon requirement that "courts must also insist that the magistrate purport to perform his neutral and detached function and not serve merely as a rubber stamp for the police" is being met. Even a rubber stamp misses the mark once in a while.

Wednesday, July 13, 2016

Can't get a minor-role adjustment? Aim for a variance instead.

With our thanks to Doug Berman, whose blog you should read as faithfully as you read the morning paper, we highlight an excellent new law-review article about the minor-role adjustment, USSG § 3B1.2.

The article addresses how frequently couriers and mules continue to be denied minor-role adjustments. There are three reasons why. First, reviewing courts apply outmoded versions of the minor-role guideline, ignoring amendments that tentatively creep toward a broader application. Second, the guidelines’ overwhelming emphasis on drug quantity continues to skew sentences. Third, guideline minor-role analyses ignore empirical research about the truly minor roles that couriers and mules serve in drug-trafficking organizations.

These are problems you often cannot address by asking the Court to apply the minor-role guideline. Mules and couriers are entirely fungible members of a drug trafficking organization. They are very often desperate people, who sign on for a brief and moderately lucrative payday. But they are sentenced just like kingpins, because the minor-role guideline does not dictate otherwise. If the guideline can’t help (though sometimes it can), don’t waste your time pounding on the minor-role door. Present the evidence, and ask for a variance.

---From Kirk Redmond

Thursday, July 7, 2016

"No one can breathe in this atmosphere."

Jonathan Rapping, of Gideon's Promise, has it right. From our station as public defense lawyers, we speak from an uncommon place. And our message, in part, is this:

Compliance is not consent. There is no such thing as consent, not anymore. Not if you are a black man. Or Latino. Or a gang member. Or young. Or impoverished. Or _______. The government can no longer credibly say that you “voluntarily consented” to stop, to speak, to get out of the car, to have your pockets searched, your car, your phone, your homes.

Not after these videos. Videos we value evidentiarily, but videos played in a continuous, numbing loop that eventually diminishes the personal tragedy, even as for others, every replay is a fresh hell.                             So mothers and fathers and the community and media and so many other voices say, “Comply!” so that you are not the next video. Remember the LAPD cop who wrote for the Washington Post, “If you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you.” 

But when you do comply, that is not consent. There is no such thing as a "consensual search," not anymore. 

That is our message, what we will scour every case for, the context for every conversation we have with our clients, the framework for our Fourth Amendment challenges. The "right to refuse consent" is no longer an option. Read Schneckclothe v. Bustamonte again, as offensive as it is. Consent, it says, is evaluated by all of the circumstances that bear on the defendant.

The totality of the circumstances must now comprehend the videos and the voices. These are no longer “isolated instances”  to be judged only within the moment, on that street corner, by the words spoken right then, from the perspective of the powerful, as “the world dies into explanations.” The Court’s rationale, if it ever was rational, behind Schneckclothe, Florida v. Bostick, United States v. Drayton,  and United States v. Mendenhall  cannot survive in this atmosphere.

Just two weeks ago, Justice Sotomayor cataloged the racist Fourth Amendment failures of the Court, including the decision she dissented from, Utah v. Strieff. She closed with this,

We must not pretend that the countless people who are routinely targeted by police are "isolated." They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner's Canary 274-283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

Note: Thanks to National Association of Public Defense:

Wednesday, July 6, 2016

Downward variance based, in part, on judge's poll of jury as to appropriate sentence affirmed by the Sixth Circuit.

Good rule of thumb if you want a quick way to know if a case is going to be reversed for abuse of discretion: if the judge being reviewed has their law review article CITED in the opinion - pretty good bet that judge was affirmed. And we have a good example of that principle in a case out of the Sixth Circuit last week in United States v. Collins.

In Collins, the defendant was convicted at a jury trial of one count of receiving and distributing child pornography and one count of possessing child pornography. The statutory maximum for the offense was twenty years with a calculated guideline range of 262 to 327 months. After the verdict the judge polled the jury and asked "State what you believe an appropriate sentence is." The jurors gave a range from zero to sixty months incarceration.

At sentencing the district judge considered the jury poll as "one factor" in determining the sentence. The judge also mentioned lack of history, absence of use of drugs or alcohol, possession of a college degree, regular employment, close family ties and financial responsibility as other factors that were considered. The judge then varied downward, sentencing the defendant to the mandatory minimum of five years on each count and running  the counts concurrent. The government objected to using the jury poll as a factor in determining the sentence.

On appeal to the Sixth Circuit, the Court affirmed. They considered the "propriety of jury polling in imposing a sentence" as "an issue of first impression." After rejecting the governments objections (conflates roles of judge and jury and was simply not a permissible factor to consider), the Sixth Circuit noted, based on a law review written by the same judge, that part of the sentencing commission's task was to take "the community view of the gravity of the offense." The Sixth Circuit was "satisfied" with the district court's discussion of the sentencing factors under 3553(a) and found the sentence to be "not substantively unreasonable."

Thursday, June 30, 2016

Mathis makes good on the promise of Descamps


Shocked by a sudden epidemic of violence against clowns, Congress passes the Anti-Clown Crime Act (ACCA). The statute imposes a life sentence on any defendant convicted of a crime of violence, if that defendant has a prior conviction for assaulting a clown. Congress employs this language:

“Whoever commits a federal crime of violence after assaulting a happy clown shall be imprisoned for life.”
Consider the following ACCA prosecutions:
Defendant #1 commits a federal crime of violence after a prior conviction under a California statute that makes it a felony to “assault a clown.” The government seeks a life sentence under the ACCA. Defendant #1’s intrepid lawyer, Carl Folsom, objects. “Judge," says Carl, “the California statute is missing an element. California only requires proof that he assaulted a clown. The state never had to prove that he assaulted a happy clown.” The prosecutor then provides a transcript of the plea proceeding, in which the defendant admits that the clown he assaulted was very happy indeed, contentedly twisting balloon animals at a child’s birthday party when the defendant began beating the poor clown with his own oversized shoe.

Undeterred, Carl presses on. “Your Honor, it doesn’t matter what the defendant admitted to. We only look to the elements of the crime, and the state never had to prove that my client assaulted a happy clown. They only had to prove that he assaulted a clown. It doesn’t matter what my client actually did; it only matters what the state had to prove.”
Defendant #2 (happily also represented by Carl) receives notice of an ACCA enhancement. Defendant #2’s prior conviction was suffered under an Iowa statute that proscribes “assaulting a happy clown,” mirroring the language of the federal enhancement statute. Things look grim. But in studying the Iowa statute, Carl notices something. While Iowa requires the jury to agree that the defendant assaulted a happy clown, it defines “happy clown” as:

1)  Birthday party clowns,
2)  Rodeo clowns, or
3)  Scary clowns that pop out of sewers and scare children.

And the Iowa statute does not require the jurors to agree about which kind of “happy clown” was assaulted.

Emboldened, Carl saunters into the sentencing. “Judge, my client cannot be punished under the ACCA. When Congress sought to punish assaults on happy clowns, it meant the kinds of clowns that we generally think of as happy clowns. When we think of happy clowns, we do not think of scary clowns that pop out of sewers and scare children. Put another way, a scary clown does not meet the generic definition of a happy clown.” The prosecutor, sensing something might be up, again produces a transcript which demonstrates the defendant admitted he assaulted a blissfully happy birthday party clown.

Looking like a man who knows something, Carl returns to the podium. “Judge, they’re doing it again. It just doesn’t matter what the defendant did. It only matters what the state had to prove. And the state did not have to prove that the defendant assaulted a generic happy clown. The state had to prove that the defendant assaulted either a birthday party clown, a rodeo clown, or a scary clown. Because the factfinder did not have to agree on which kind of clown was assaulted, the ACCA enhancement cannot be applied.”
Is Carl right? Of course Carl is right.

Swap out "burglary" for "clown assault" and the Supreme Court has already decided both cases in our favor. Remember: Our question is whether the state offense the government wants to use to enhance our client’s sentence establishes all elements of the generic crime (burglary, clown bashing, etc.). Defendant #1’s case was resolved in Descamps v. United States. There, the Court held that when a state statute is missing an element of the generic offense, it does not qualify as a violent felony under the ACCA, whether the defendant admits that element or not. We look only at what the state had to prove. We don’t care if the defendant admitted something else.

The Supreme Court resolved Defendant #2’s case last week in Mathis v. United States. Mathis held that when a state statute sweeps more broadly than the generic offense, it cannot serve as a violent felony under § 924(e). Iowa burglary prohibits unlawfully entering an occupied structure to commit a crime. But Iowa then defines “occupied structure” to include non-generic objects of burglary like cars and airplanes. The key here is that the jurors need not agree on what kind of occupied structure the defendant burgled. Because the jurors do not have to agree that a generic burglary was committed, Iowa burglary, said Mathis, cannot serve as a violent felony under § 924(e).

Is this a big deal? We think it’s a big deal. For one, Mathis abrogated the Tenth Circuit’s approach to statutory divisibility and the modified categorical approach in United States v. Trent, 767 F.3d 1046 (10th Cir. 2014). For two, a large number of Kansas statutes have the same problem the Court identified in Mathis. More on that later.

---From Kirk Redmond