Saturday, December 20, 2014

Another Pimp Bites the Dust

Continuing with recent decisions published by the Tenth Circuit, we present:
United States v. Brinson (Judge Bacharach, with Judges Holmes and McHugh)
The case involves a pimp, an underage prostitute, and a police sting. You know the drill. The case went to trial. The jury convicted. The defendant appealed. The opinion is a whopper: 28 pages. It addresses 6 issues. Luckily, the Court summarizes its holdings on each issue on pages 2 and 3. This is a fantastic summary, actually. Aside from reading this summary, here's what you need to know (we think):
  1. apparently, there are "experts" on child prostitution rings who can testify as to many "aspects" of such rings "unknown to jurors." This "expert," by the way, was a police officer. He testified about, inter alia, coded language, and he also explained how a pimp uses the Internet and cell phones to recruit and control prostitutes. Interestingly, in finding no abuse of discretion, the Court failed to cite the relevant rules of evidence. There is essentially no legal analysis on this issue whatsoever. Yet, this is a published decision . . . .
  2. if your client posts messages on Facebook, they are fair game at trial under Rule 801(d)(2)(A)'s party-opponent exception to the hearsay rule, and that is true even if your client uses an alias on Facebook (as long as the government proves identity by a preponderance of the evidence).
  3. out-of-court statements are admissible if they explain why the police officer did what he did, and not to prove the truth of the statements. So, if an unknown individual told the officer to go to Room 123 at the Super 8, that statement is admissible to show why the officer went to Room 123 at the Super 8. And if the prostitute tells the officer that she does not have a condom, that statement is admissible to show why the officer paid for oral sex instead of some other type of sex (we are not entirely sure why the type of sex is relevant, but anyway). Nor were these statements inadmissible via the Confrontation Clause because they were not "testimonial" (i.e., used in relation to a criminal investigation).     
  4. the government can admit into evidence a certificate authenticating debit card records under Rule 902(11), which avoids the need for live testimony to authenticate the records. Again, this certificate is not "testimonial," even though arguably prepared for trial, because the certificate does not contain any "analysis that would constitute out-of-court testimony" (contrast with a forensic report).
  5. officers had probable cause to arrest the defendant; among other things, they knew that he had rented the prostitute's room, and he was seen driving a vehicle slowly by the room that night (trust us on this one; there was probable cause)
  6. the evidence was sufficient. The Court spends more time on this last issue than any of the others (but the analysis is still perfunctory). It seems a safe bet that the evidence was sufficient, but we note:
    1. the interstate commerce nexus was met via the defendant's use of the internet and a cell phone (so, intrastate activity becomes a federal crime if the defendant advertises a prostitute online or uses a cell phone to communicate with her);
    2. the defendant actually had proof of the prostitute's age (14 years old) in his vehicle (ouch);
    3. text messages between a pimp and an underage girl, the nature of which involves the girl becoming a prostitute, is sufficient to establish an attempt conviction, as well as a coercion/enticement conviction;
    4. if your client tells another person not to testify in front of the grand jury, that amounts to obstruction of justice (you guessed it, this conversation happened on the jail phone).
Our final point on this monstrosity is to note, again, the barebones nature of the analysis in this published decision. We are unsure how one would use this as precedent, so be careful if the government cites it in one of your cases.

Friday, December 19, 2014

1 year = 365 days

We need to update you on some recent decisions published by the Tenth Circuit. Here's one:
United States v. Black (Judge Murphy, with Judges Gorsuch and Sentelle (D.C. Cir.))
The case is one of statutory interpretation. The statute at issue is one provision of the Sex Offender Registration and Notification Act (SORNA): 42 U.S.C. 16911(5)(C). The provision excludes certain sex convictions from registration requirements, namely, those that involve consensual sexual conduct where the victim "was at least 13 years old and the offender was not more than 4 years older than the victim."
Jay Black was 18 when he had consensual sex with a 14 year old. Using simple arithmetic, Black argued that he should not have to register as a sex offender because 18 - 14 = 4, and so he was exactly 4 years older than the victim, and, therefore "not more than 4 years older than the victim."
The government countered with its own arithmetic: a comparison of the two birthdates revealed that Black was actually 55 months older than the victim, and so he was "more than 4 years older."
Unsurprisingly, the Tenth Circuit sided with the government: "not more than 4 years older" means "not more than 1461 days or 48 months older than the victim." In other words, the Tenth Circuit defined "4 years" in terms of days (or months, but days is more precise). There is some sense to this. For instance, when our clients receive a sentence of 4 years' probation, we expect them to serve exactly 1461 days on probation. We do not expect them to serve anywhere from 1461 days to 1826 days on probation.
The Tenth Circuit itself noted a similar problem with the defendant's argument: if accepted, other provisions would make criminal conduct otherwise not criminal. The example: a different provision in SORNA that prohibits sex with anyone between the ages of 12 and 16 when the victim is "at least four years younger than" the defendant. If whole numbers are used, the just-turned 20-year old who has sex with the almost-17-year old has committed a crime, even though, when birth dates are consulted, the two are less than 4 years apart in age.
So, in the end, birthdates matter, and 1 year = 365 days (and so on).
Lesson learned.

Thursday, December 18, 2014

Lies and Crack Cocaine

From First Assistant Federal Defender Kirk Redmond:

You may know the history. None of what I write is new. But a reminder is occasionally important.
In 1986, Len Bias died of a cocaine overdose. The ensuing chaos led to the mandatory minimum penalties for drug offenses that are (except for crack cocaine) still in effect today. Here is how things went down.

When Congress returned to session after the midterm elections, drugs dominated the debate. A punitive auction broke out. Eric Sterling, who served as counsel for the House Judiciary Committee, describes the proceedings:
"So the DEA came up with numbers to define high-level trafficking, but a congressman from Kentucky said he would never be able to use the law because they didn’t have trafficking that high in his area. So we needed new numbers. Nobody stopped to say, “But Louisville isn’t Miami or Hollywood or New York. You should be lucky you don’t see this in Louisville.” Suddenly, these numbers just wouldn’t work — we needed “better” numbers. So I called a very respected narc named Johnny St. Valentine Brown, whose nickname was Jehru, to detail to the committee what the numbers should be on minimum trafficking violations."

Problematically, the source of these numbers is a serial liar. Mr. St. Valentine Brown is a conceded perjurer. Worse, he attempted to evade punishment for his perjury conviction by fabricating support letters, for which he was convicted of obstruction. The man who established the mandatory minimum thresholds in effect for the last twenty eight years is an accomplished prevaricator.
The Supreme Court’s recognition that the drug guidelines are not empirically based is a pallid reminder of how absurd the numbers our clients face actually are. In a drug sentencing, one might as well throw darts. 

Wednesday, December 17, 2014

Heien v. North Carolina

As promised (but a day late), more analysis of Heien v. North Carolina. This week's SCOTUS decision offers more police-friendly accommodations and, concomitantly, further erosion of the Fourth Amendment.

Recap: Heien said that a police seizure based on an objectively reasonable mistake of law does not violate the Fourth Amendment. The police had stopped a car because one of the tail lights was not working. As it turns out, state law only required one working lamp. But this was a reasonable, and forgivable, mistake of law, according to eight justices.

How do we work with this? First, don't resign that the issue is dead. This is not carte blanche for police to claim mistakes. Deliberate  ignorance will not be tolerated. The Court promised. "The Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law --  must be objectively reasonable." Hold to the language of Heien. "Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce."

Contrast this to Whren, even though the Heien Court does not. The Whren Court allowed a stop for a traffic violation, even when the true subjective motivation for the stop was not enforcing traffic safety but an excuse to come into contact with a drug suspect. Here, Chief Justice Robert's invokes Whren to support the objective standard. "We do not examine the subjective understanding of the particular officer involved." But what if there is evidence that the police officer actually knew the law, however obscure? Can the government still claim "objective" mistake? Justice Kagan probably precludes this argument. Her "objectively reasonable" standard cleaves to honest mistakes, not dissembling claims of objective mistake. "That means the government cannot defend an officer’s mistaken legal interpretation on the ground that the officer was unaware of or untrained in the law."

Next, enforcement of the Fourth Amendment by excluding evidence is not merely to punish or deter police misconduct, and Chief Justice Roberts allows this. The Fourth Amendment should protect against unreasonable police intrusions, and that protection should extend farther and deeper than just a prophylactic effect on police. This isn't just about the police; it is about a person's right to be "secure . . . against unreasonable searches and seizures."

Finally, embrace Justice Sotomayor's defense of the Fourth Amendment. The majority opinion "means further eroding the Fourth Amendment’s protection of civil liberties in a context where that protection has already been worn down." This language can be used in tandem with Justice Kagan's "important limitations" required by Heien.

There is much to guard against. Taken to its legal and logical extreme, Heien will allow both mistake of law and mistake of fact in the same scenario. "Reasonable suspicion arises from the combination of an officer’s understanding of the facts and his understanding of the relevant law." Let's say, hypothetically, it is illegal to drive a green car, but only in the passing lane. Police see a person driving a blue car in the right hand lane and stop the car to investigate their reasonable suspicion of a crime. The police made a mistake of fact (the car was not green, but blue) and a mistake of law (the law only prohibited driving in the passing lane). Under Heien, that's called safe. 

Let's throw in the Whren factor -- as long as police are objectively reasonable about the justification for the stop, their subjective motivation is irrelevant.  Where are we now? The subjective motivation for stopping the car is irrelevant as long as there is an objectively reasonable basis for the stop, even if that objectively reasonable basis is an objectively reasonable mistake about what law was violated and a mistake about whether the observed facts broke the non-existent law. This truly strains the already thinning protection of the Fourth Amendment. The mistake of fact and law scenario is an illogical extension not likely tolerated by SCOTUS, given the caution recommended by Justice Kagan and the criticism of Justice Sotomayor. 

Monday, December 15, 2014

SCOTUS: Police Don't Know the Law? No Problem.

Today, in Heien v. North Carolina, the Supreme Court found that an officer's reasonable mistake of law can still support reasonable suspicion to stop a car for further investigation. The officer's mistake does not make the interaction unreasonable under the Fourth Amendment. We blogged about the cert grant here

Roberts wrote the opinion, joined by Scalia, Thomas, Alito, Kennedy, Breyer and Kagan. Kagan also wrote a concurring opinion, with Ginsburg. Sotomayor was the lone dissent. Roberts cut to the chase:
In this case, an officer stopped a vehicle because one of its two brake lights was out, but court later determined that a single working brake light was all the law required. The question presented is whether such a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. We hold that it can. 
So mistakes of law will be treated the same as mistakes of fact?

Justice Kagan chimes in to make sure everyone knows that the test is one of objective reasonableness.
Sotomayor drew a hard line in her dissent: "To my mind, the more administrable approach—and the
one more consistent with our precedents and principles—would be to hold that an officer’s mistake of law, no matter how reasonable, cannot support the individualized suspicion necessary to justify a seizure under the Fourth Amendment. I respectfully dissent."

More detail and analysis tomorrow.

Sunday, December 14, 2014

An Unexpected Win: Another Sentence Vacated under Plain Error Review

We continue where we left off yesterday: with another recent decision vacating a sentence because of an erroneous recidivist sentencing enhancement. This one is also from the Second Circuit:
United States v. Sanchez (Judge Cabranes, with Judges Livingston and Straub):
Drug convictions carry different penalties based on the type and quantity of drugs involved in the offense of conviction, as well as on whether the defendant has a prior conviction(s) that qualifies as a "prior felony drug offense." See 21 U.S.C. 841 & 851. In this case, the district court enhanced the defendant's statutory penalty range from 10 years' imprisonment and 5 years' supervised release to 20 years' imprisonment and 10 years' supervised release based on a prior Connecticut conviction for possession of narcotics. The district court sentenced Mr. Sanchez above the 20-year minimum (288 months) and also imposed the statutory minimum 10 years' supervised release.
On appeal, the government conceded that the district court erred in enhancing the statutory penalty range based on the prior Connecticut conviction. To understand the concession, one has to read this decision from the Second Circuit, which explains that Connecticut law criminalizes conduct related to "two obscure opiate derivatives" that do not fall under the federal definition of "felony drug offense." So, the government has to demonstrate that the basis of the prior conviction was not related to either of these obscure opiate derivatives, something that it could not do in this case (presumably because of the age of the conviction). In practice, then, if you have a drug case, and the client has a prior drug-related state conviction, make sure to compare the state provision with the federal provision for oddities like the one in this case. And remember to obtain the underlying Shepard-approved documents (charging instrument, plea colloquy, jury verdict, judgment, etc.) to determine whether the government might be able to meet its burden in your case.
There's more to this case, though. The government conceded reversible plain error only with respect to the term of supervised release, not the term of imprisonment (remember the latter was above the minimum). But not just the government. Apparently, the defendant agreed with the government's position on the authority of another Second Circuit decision that refused to vacate a sentence in a similar situation. The Court did something remarkable, however, and disagreed with both parties. It found this prior case distinguishable because the district court in that case expressly stated that the sentence imposed was independent of any consideration of the prior enhancer conviction. The district court did not make a similar statement in Sanchez's case, but instead mentioned the statutory minimum throughout the sentencing hearing. So, the Second Circuit found reversible plain error (there was no objection in the district court). The Court vacated the 288-month term of imprisonment, even though it was 48 months above the erroneous statutory minimum, because the district court's mention of the minimum "permeated the record."
When it comes to recidivist sentencing increases, it appears as if defendants are winning appeals even they admit they should not win. The momentum on these issues is remarkable. Scrutinize prior convictions. All of them. Change is in the air . . . .

Saturday, December 13, 2014

16 Is the Magic Number

We discussed yesterday the recent success of challenges to recidivist sentencing enhancements. We continue the theme today, with this recent decision from the Second Circuit:
United States v. Mead  (Judge Livingston, with Judges Lohier and Stein (S.D.N.Y))
New York's statutory rape law provides different penalties depending on the age of the victim. The lightest penalty applies to conduct with a 15 or 16-year old. Other categories cover younger victims and carry stiffer penalties (5 categories in all).
Terry Van Mead had one of these convictions. When he was 30 years old, he had sex with a 15 year old. So, when he went to sentencing for, inter alia, a federal firearms offense, an issue arose: was his prior conviction a crime of violence under USSG 2K2.1 (which provides increased base offense levels for those with prior crimes of violence) and USSG 4B1.2 (which defines the term "crime of violence"). The district court said that it was. The Second Circuit reversed.
The Second Circuit surveyed how it and other Circuits have dealt with similar statutes. It also surveyed the age of consent in various jurisdictions. It learned that the age of 16 is the age of consent in most jurisdictions. And it also learned that most statutory rape provisions that govern 16 year olds have not qualified as crimes of violence (or violent felonies, the statutory sister to the Guidelines' crime of violence provision, found in the Armed Career Criminal Act; the Court noted that the provisions are interpreted similarly). Because the New York provision at issue in this appeal reached only 15 and 16 year olds, thus criminalizing conduct with 16 year olds in many cases, the Court held that it did not qualify as a crime of violence.
Simple enough. If you have a client with a prior statutory rape conviction, you'll want to do a few things: (1) determine whether the state's penalty scheme turns on the age of the victim; and (2) if so, whether your client's conviction falls within the provision punishing contact with 16 year olds (or older). If so, you have a very good argument that the conviction does not qualify as a crime of violence (or a violent felony).
A few more points:
  1. A conviction can qualify as a crime of violence if it involves physical force or if it "otherwise involves conduct that presents a serious potential risk of physical injury to another" (this is the infamous residual clause). The analysis centered on the residual clause; the Court dismissed the idea that statutory rape involved physical force early in its decision.
  2. The Court's decision did not necessarily turn on the strict liability nature of statutory rape (although that was obviously a factor). In a footnote, the Court noted that a strict liability offense might qualify as a crime of violence in "particular circumstances" (of which the Court did not define).
  3. The Second Circuit mentioned a Tenth Circuit case, United States v. Dennis, which held that a statute criminalizing "indecent liberties" with anyone 18 years or younger was not a crime of violence.
  4. The Second Circuit was unconcerned with the age differential in the statute (it punished only those offenders 21 and older) 
The Vermont Federal Public Defender successfully litigated this issue.