Saturday, January 31, 2015

The First Vacated Sentence of 2015

In the Tenth Circuit, in a published decision, anyway (the Court vacated a sentence in an earlier unpublished decision where the district court found a fair possibility that the district court imposed a lengthier sentence for purposes of rehabilitation, an error thanks to this Supreme Court case).
The published decision is United States v. Wray, and it was litigated, successfully, by Matthew Belcher, an AFPD in Denver.
The issue: whether a prior Colorado conviction for "sexual assault -- 10 years age difference" (in the Court's words: "in essence, a statutory rape conviction") qualified as a crime of violence under USSG 2K2.1 & 4B1.2 
The Holding: Categorically speaking, it does not.
The Analysis:
The Court addresses two potential avenues:
(1) whether the conviction qualifies as a crime of violence because it is a "forcible sex offense" under Application Note 1 to 4B1.2; and/or
(2) whether the conviction qualifies as a crime of violence under the residual clause of 4B1.2 (a residual clause identical to the one the Supreme Court will determine is either void for vagueness or not in Johnson v. United States)  
The bifurcated analysis is a great reminder that you need to know, and pay attention to, the enumerated offenses in Application Note 1. It is also a great reminder that the Guidelines' crime-of-violence provision is different, in this respect, from the violent felony provision in the Armed Career Criminal Act (although, earlier in this decision, the Tenth Circuit tells us that the analysis is essentially the same).
In holding that statutory rape is not a "forcible sex offense," the Court:
  • reviews a different definition of "crime of violence" in USSG 2L1.2 (applicable in immigration-related offenses), a definition that includes statutory rape, and, in a solid display of statutory interpretation, concludes that the absence of statutory rape in Application Note 1 means that Note 1 was not meant to include it as a crime of violence (espressio unius est exclusion alterius) (somewhat inexplicitly, the government actually cited 2L1.2 in support of its argument); and
  • holds that consensual sex, considered nonconsensual solely because of the age of the victim, does not qualify as "forcible" conduct.
The Court spent some time distinguishing a few prior cases, and finding one, United States v. Dennis, that supported its conclusion. It also relied somewhat heavily on an unpublished decision from the Fourth Circuit. So, when researching an issue, don't forget the unpublished decisions. Some courts of appeals never cite them, but the Tenth Circuit is not one of those courts.   

In holding that statutory rape does not qualify as a crime of violence under the residual clause (an offense that "involves conduct that presents a serious potential risk of physical injury to another"), the Court held that:
  • the commission of a strict liability, negligence, or recklessness offense is not a crime of violence; and
  • statutory rape is a strict liability offense, at least where the statute at issue does not require that the defendant know the victim's age.
 Sentence vacated. Case remanded for resentencing.

Friday, January 30, 2015

Issues Pending in the 10th Circuit

Today, we launched our Issues Pending in the 10th Circuit, available on our website here. We're excited about it. The Preface gives some context to it, but it's fairly simple: we now track issues raised in the 10th Circuit and categorize those issues for you, and anyone else, to read. At some point, the document will be comprehensive. In other words, it will include all issues currently pending in criminal cases in the 10th Circuit. And by current, we mean that day. This might take a minute. We began this project on December 1, 2014. Any issues briefed and argued prior to that might not be on the document. But we are working on it. Every day.
You can use this information in so many ways, whether to spot issues yourself, determine whether an issue you intend to raise is now pending, notify the Tenth Circuit of a related case raising a similar issue, or just to familiarize yourself with the issues others are raising on appeal. We encourage you to use it often. And let us know if you have questions or concerns. This is something that has never been done in the Tenth Circuit. We hope our plan is a good one and that you can benefit from it. 

Tuesday, January 27, 2015

The Longest Opinion Ever on Statements against Interest

We guess, anyway. In keeping with a noticeable pattern, the Tenth Circuit published a very long opinion (26 pages) last week. This one is on Federal Rule of Evidence 804(b)(3). The case is United States v. Lozado.

Rule 804(b)(3) allows for the admission of hearsay statements against penal interest made by unavailable witnesses. To be admissible, a statement must be one that: (1) "a reasonable person in the declarant's position would have made only if the person believed it to be true;" and (2) "is supported by corroborating circumstances that clearly indicate its trustworthiness."
In Lozado, the defendant sought to introduce a statement his brother-in-law, Farris, made to officers after officers found ammunition in Lozado's vehicle. In the statement, Farris told officers that the ammunition was his, although he got most of the details about the ammunition (and other things) wrong. Farris also admitted that he was an illegal drug user, but continually told officers that he had done nothing wrong (it is, of course, illegal for a drug user to possess a firearm under 18 USC 922(g)(3)). Farris's statement actually contradicted Lozado's; Lozado also claimed ownership of the ammunition in the vehicle.  Farris was unavailable at Lozado's trial because he asserted his Fifth Amendment right to remain silent. But the district court excluded the hearsay statements. Lozado was convicted and sentenced to a whopping 235 months' imprisonment for his possession of ammunition.
The Tenth Circuit affirmed in an exegesis on Rule 804(b)(3). The Court addressed both prongs of the above-mentioned test, dwelling on the first one for an excruciating long time. But we wonder why. The much shorter analysis on corroboration appears to suffice. The district court found the statements uncorroborated. Farris's story did not mesh either with the facts or Lozado's own admission that the ammunition was his. And Farris was Lozado's brother-in-law.
With that said, we note some frustration with this requirement of corroboration on such a key piece of evidence. Farris's statement was extremely important to Lozado's defense. It seems to us that the credibility of the statement should have been left for the jury to decide. Or give immunity to Farris and allow him to testify (an admittedly unthinkable idea).
The Court's discussion on the first prong is not an easy read. There is a debate on whether the "reasonable person" test is objective or subjective, even though "reasonable person" tests are, as far as we know, defined as objective tests. The Court tries to reach the opposite conclusion, straining to interpret a declarant's "actual" beliefs on the inculpatory nature of the statements as relevant to the reasonable person analysis, but the cases it cites appear largely inapposite and the quotes pulled from those decisions are seemingly taken out of context. In any event, even assuming the Court nailed its analysis, the oddity is that, following it, the Court concedes that the record is unclear as to whether Farris subjectively believed that his statements were inculpatory. So we think all of this is dicta. Ultimately, the Court concludes that the district court did not abuse its discretion when it held that a reasonable person would not have believed Farris's statements were against his penal interest. Apparently, the district court thought charges under 922(g)(3) rare, and defense counsel admitted that it did not even know 922(g)(3) existed. The Court says that it does not rely on these things in making its ultimate determination. But it gives no other reasons, other than Lozado had the burden of proof and he did nothing to meet it (amazingly, it took 21 pages to say this).
Whatever the state of the law on Rule 804(b)(3) prior to this decision, it just got a whole lot murkier.    

Monday, January 26, 2015

U.S. v. Vann Part II: Experts and Closing Arguments

Yesterday, we blogged about two of the four issues addressed in United States v. Vann. We wrap up with the other two issues today. We'll have to tell you a bit about the facts first (something we did not have to do yesterday).
Rayvell Vann flew to Los Angeles, then decided to take the train back to Kansas City. Two hours prior to departure, he bought a ticket. A confidential source tipped off law enforcement "about the unusual circumstances of Vann's Amtrak reservation." The train stopped in Albuquerque. A DEA agent boarded, conversed with Vann, then asked to search his bags. Vann consented. The officer located an "out-of-place large pink gift box." Somehow, this find led Vann to admit that he was transporting codeine and painkillers. The officer arrested Vann and got a search warrant for the box. Aside from the codeine and painkillers, the box also contained roughly 200 grams of PCP. Vann admitted that he bought PCP in Los Angeles to sell in Nebraska, but claimed that he mailed the PCP and had no idea that the box also contained PCP. A jury found otherwise. Two evidentiary challenges on appeal fell on deaf ears:
  1. Expert Testimony on Drug Trafficking
At trial, a DEA agent testified as an expert in drug trafficking. This is unfortunately common practice these days. Vann actually conceded that the agent was an expert, but thought his testimony unreliable, particularly his opinion testimony that "PCP wholesalers do not typically package PCP for buyers." This testimony inferred that Vann himself packaged the PCP.
We pause to note some confusion with all of this. The PCP was found in a large pink gift box. How it got there was an important question in light of Vann's defense. And remember, Vann admitted that he knew of the other items in the pink gift box. Without knowing exactly what the agent testified to, it is nearly impossible to understand this decision. Was there "expert testimony" that codeine and pain killers were not distributed in large pink gift boxes? Or just "expert testimony" that a PCP wholesaler would not package PCP in a large pink gift box? How is PCP packaged?
The decision is just a smattering of unspecific statements about the agent's history and experience with drug interdictions, followed by generalized conclusions on the agent's reliability.
We have no idea what this opinion means moving forward, but it cannot be a good thing. We can envision the government interpreting this decision to allow agents to testify to anything under the guise of "expert testimony on drug trafficking." Indeed, the Court noted a recent case limiting such testimony, but called that case "the exception not the rule." We would encourage you to find some limiting principle in this decision if you have a similar issue (but we are unsure exactly what the limiting principle would be).

    2.  Prosecutorial Misconduct

On appeal, Vann alleged that certain statements made by the prosecutor were improper. He did not object below, thus review was only for plain error. The Court found no error at all.
The government argued that Vann could have "without incident walked on a plane with codeine and the painkillers," and so he must have took the train because of the PCP. But Vann noted that the codeine bottles were nameless, and the agent/expert only testified that one could take on a plane a bottle of codeine pills that had a name on it. So the government's argument misstated its own evidence. The agent's testimony also indicated that he had intercepted codeine cough syrup on trains, and Vann thought this testimony undermined the government's codeine-on-a-plane theory.
Again, this decision leaves us scratching our heads. The Court talks about circumstantial evidence and how the government's argument was proper "lawyering" based on "reasonable inferences." We think what the Court meant is that the government's argument was not very good, but that does not mean that it was improper. This makes some sense. But the decision is too amorphous to fully understand.
Vann's final complaint had to do with the government's assertion that Vann's "reticent reaction" when the agent's found the PCP was common of dealers, not low-level drug mules. The problem with this comment was that the government never presented any evidence on this "reticient reaction." The Tenth Circuit brushed this aside, finding that the comments were in reference to Vann's "reaction and demeanor when he was arrested." With that conclusion, we are now completely lost, considering that the government conceded it failed to introduce evidence of this reaction at trial.

In the end, we wish we could provide more guidance on this decision, but we cannot. Let's hope that it fades away.  

Sunday, January 25, 2015

U.S. v. Vann Part I: Batson and Faretta

The Tenth Circuit published United States v. Vann the other week. The opinion is 34 pages long and addresses four issues (the defendant lost all of them). We'll deal with two of the issues today.
  1. Batson Challenge
The government used a preemptory strike on the lone African-American on the venire. So the defendant raised a Batson challenge (this is the Supreme Court decision that holds that prospective jurors may not be stricken based solely on their race). The government denied that it struck the person based on race. Instead, the prospective juror did not fill out the jury questionnaire ("there's no indication that he has any type of family or any type of job"). The government took this to mean that the prospective juror was uneducated. Oh, and the government also thought that the person appeared "dazed and disengaged" during voir dire. Finding these reasons sufficient, the district court immediately denied the defendant's challenge. Defense counsel wanted to respond, however, so the court allowed a response, then denied the challenge. After trial, in a motion for new trial, the defendant addressed the Batson issue anew, noting that the prospective juror actually had some college education, whereas one of the actual jurors was uneducated. In response, the district court gave a more detailed reason for denying the challenge (but not much more).  
On appeal, the defendant focused his complaint on the brevity of the district court's denial, rather than the appropriateness of it. In other words, the defendant thought the district court should have said more when it denied the challenge. The Tenth Circuit was unimpressed, essentially holding that a district court need not say much of anything when denying a Batson challenge. In a footnote, the Court acknowledged a likely split in the Circuits on this issue, as other courts of appeals require explicit factual findings when ruling on a Batson challenge. Perhaps the Supreme Court will take this case to resolve the conflict in the Circuits.
The Court criticized defense counsel on a number of points, including its failure to make all of its arguments concomitant with the challenge and its failure to respond directly to all of the government's "race-neutral" reasons at the time those reasons were offered. The Court was particularly unimpressed with counsel's motion for new trial, where "with the benefit of hindsight" counsel  "constructed a rebuttal" of the government's reasons. The Court suggested that the challenge should have been "renewed" once the jury was comprised. This is tough criticism considering the practical realities of picking a jury in federal court. But it suffices to say that Batson arguments in motions for new trials might not be a particularly good idea moving forward.

2. Self-Representation at Sentencing

We'll skip to the last issue because this is getting long. That issue is somewhat straightforward. The defendant elected to represent himself at sentencing, which is his constitutional right to do so. Yet, on appeal, he asserted that the district court failed to advise him properly on the risks of self-representation. The government actually conceded the point, but asserted that a Faretta inquiry prior to trial sufficed to put the defendant on notice of the risks associated with self-representation. This seems like a stretch to us. That inquiry took place three months prior, and it involved trial, not sentencing. We are fairly certain the two are different. Yet, the Court actually bought this argument. It noted that the defendant pointed "to no case holding that an earlier, in-depth Faretta hearing cannot satisfy" a waiver of counsel. But we wonder if the government pointed to the opposite case. If it did, the Court failed to cite it. We think the dearth of case law favors the defendant, as it suggests that this type of error is simply not committed by district courts. We understand the frustration with a defendant's inconsistent arguments (I don't want an attorney, wait, I should have had an attorney), but a Faretta inquiry is a fairly simple thing. It would have been nice had the Court noticed the district court's error, vacated the sentence to correct it, and remanded for resentencing, instead of trying to justify the error on an analysis of how many cases the defendant cited (or did not cite). This sounds like another cert. worthy issue to us.

Saturday, January 24, 2015

Community Caretaking and the Fourth Amendment

The Tenth Circuit published United States v. Gilmore last week.
Andre Gilmore went to the National Western Stock Show in Denver. According to others, Gilmore was "staggering and appeared intoxicated," "staggering or swerving," "very disoriented," "out of it," "staring blankly into the air, having difficulty focusing, walking in a meandering, unsteady fashion," and "a candidate for protective custody due to his apparent level of intoxication." So officers approached him and asked questions, but Gilmore either did not answer or mumbled something incoherent. Officers then asked if he had any weapons, but Gilmore did not answer, so officers frisked him. He had a gun (of course he had a gun). He was a felon as well, so the case went federal. Gilmore filed a motion to suppress. It was denied. The Tenth Circuit affirmed.

The decision does not turn on reasonable suspicion to believe that Mr. Gilmore was armed and dangerous, the standard justification for a frisk. Instead, the Court determined that the officers had probable cause to believe that Gilmore was a danger to himself. In support, the Tenth Circuit cited a string of cases involving seizures justified via a community caretaking justification. One case actually holds that officers, acting as community caretakers, can seize a drunk person so long as the officers have probable cause to believe the person might harm himself or others.
What is interesting about this case, however, is that the Court upholds a search, not a seizure, based on the community caretaking rationale. That seems a significant step to us. The Supreme Court has often said that searches (especially of one's person) are much more serious infringements than seizures. But we might be alone because Gilmore actually conceded that probable cause that he was a danger to himself meant probable cause to search (not just seize). That concession moots our concern for this case (but it might be wise not to concede this point in future cases).
The remainder of the opinion is a recitation as to why the officers had probable cause to believe that Gilmore was a danger to himself. We will not reiterate all of it, but the bottom line is that Gilmore appeared extremely drunk and in need of care.

Wednesday, January 21, 2015

More on Facebook Rants

In December, the Supreme Court heard oral argument in a case (Elonis v. United States) involving a rap-lyricized Facebook rant. We blogged about Elonis here. For more information on the case go here. The Court will have to decide whether a conviction under the federal threat statute, 18 U.S.C. 875, requires the government to prove a subjective intent to threaten, or whether it is sufficient proof that a "reasonable person" would find the statements threatening.
Last week, the Tenth Circuit published a decision in a similar case: United States v. Wheeler. In line with its prior decisions, the Tenth Circuit held that the government must prove a subjective intent to threaten, and the Court reversed the conviction because the jury was not instructed properly on this subjective intent element. In a footnote, the Court acknowledged that this precise issue is at the Supreme Court, but refused to suspend briefing pending the disposition of Elonis because the defendant (Mr. Wheeler) was in custody, and, thus, might be prejudiced by any delay.
The decision addresses two other opposite arguments: (1) the government's harmless error argument; and (2) the defendant's insufficiency of the evidence argument. The Court rejected both, ultimately concluding that Wheeler's subjective intent, and whether the threats were "true threats," were questions for the jury.
Briefly, on harmless error, the Court:
  • mentioned that, post arrest, Wheeler stated that he thought he had no Facebook friends; 
  • rejected the government's argument that a jury instruction on "intent to do something the law forbids" was the equivalent to a jury instruction on subjective intent; and
  • refused to find harmless error based on Wheeler's post-arrest statement, which included statements on seeking revenge on others.
On the sufficiency of the evidence, the Court:
  • relied on prior precedent for the proposition that whether a statement is a "true threat" is a question for the jury;
  • held that the "true threat" analysis focuses on those who hear the threat, rather than on whether the defendant had the ability, or intended to carry out, the threat (but remember, he must have had the subjective intent to threaten, even without the additional intent to carry out the threat);
  • held that commands to others to carry out a threat could be sufficient to convict (some Circuits hold that the defendant must either state his own intent to carry out the threat or at least have control over the individuals who are directed to carry out the threat); and
  • concluded that a reasonable person could conclude that the defendant's statements were true threats and that he had the subjective intent to threaten when he posted the comments on Facebook (the statements were aimed at doing violence to named police officers and their family members, as well as an attack on a daycare center).
In other words, the Tenth Circuit reversed the conviction based on erroneous jury instructions, then concluded that the disputed issues (his subjective intent and the nature of the threats) had to be resolved by a jury, not by a judge.
Of course, depending on how Elonis is decided, the shelf life of this decision could be short.

Saturday, January 17, 2015

Controlled Substance Analogues

Manufacture and distribution of controlled substance analogues are a primary trend in federal drug prosecutions. Analogues are synthetic substances that try to mimic organic drugs, like marijuana. 

There are a number of these large prosecutions ongoing -- large in number of defendants, geography, timeline, drug amounts, and scope of conspiracy. And because it is a rather unexplored frontier, there are a number of unresolved legal issues. Yesterday, the Court granted cert on one such question:

Issue: Whether, to convict a defendant of distribution of a controlled substance analogue – a substance with a chemical structure that is “substantially similar" to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) – the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.

The case is McFadden v. United States, out of the Fourth Circuit. Argument is not yet scheduled.

Wednesday, January 14, 2015

Pseudo-science in a pouch: field tests for drugs

Kristen Swann, associate at Morgan Pilate, spoke at the December KC Fed Talk on the topic of unreliable field tests. We asked her to follow up with a blog post, and she graciously accepted our invitation. From Kristen:


John Kelly’s 2008 report False Positives Equal False Justice sounds the siren about the nonspecificity of presumptive field tests for drugs, explaining in lawyer-friendly language how these tests function, exposing the serious flaws in the existing scientific literature that purports to validate their use, and documenting the wrongful prosecutions that result from the tests’ (mis)use.   It’s a must-read.  

But in the meantime, here is Just Enough Science to Make You Dangerous.  While I’ll focus here on presumptive tests for marijuana, the same concepts and limitations apply across the board. Field tests for drugs are crude investigatory tools.  These tests rely on the principle that certain functional groups – small clusters of atoms within the larger molecule that determine its chemical properties – will react with particular reagents to create a particular, ostensibly easily recognizable color change or series of color changes.  But these functional groups are not unique to any particular controlled substance; they can be found in a number of licit and illicit molecules alike.  The tests look for a structural feature of the molecule, essentially.

For example, the Duquenois-Levine (D-L) reagent, for decades the gold-standard of marijuana field test kits in the United States, does not react specifically with the complex molecule tetrahydrocannabinol (THC).  Rather, it reacts with resorcinol, a functional group that is present in the THC molecule, but not exclusive to THC.  A substance containing THC will react with the D-L reagents to change color because of the presence of resorcinol, but the presence of resorcinol does not indicate the presence of THC – in fact, resorcinol is a relatively common chemical building block found in Sucrets, many skin treatments, and a host of innocent plants that likely number in the thousands.  A study cited by Kelly identified multiple benign, common substances that yield false positives (cypress, patchouli, eucalyptus) or inconclusive results (lavender, oregano, spearmint) when tested with the D-L reagent.  In a related Marijuana Policy Project press conference, you can watch a Hershey’s chocolate bar test positive for THC.  The tests simply are not specific. They cannot positively identify a substance.                     

Resorcinol will react with the reagents in the D-L test to produce, in sequence, “a purple color,” then “a layering with dark purple on top and light purple on bottom,” or a “dark blue or violet” followed by a “grey upper layer over a violet layer,” or a “slate-grey upper layer over a purple lower level,” or “a blue-violet or purple color” that is extracted “into the lower layer,” depending on how the manufacturer describes a positive result or depicts it on the packaging.  (Compare this with this with this.)  Moreover, the color the reagent actually produces in practice may vary depending upon the concentration of the drug, its form, or the presence of contaminants, as this oft-cited but Kelly-debunked study that purports to validate these tests freely admits.  If the officer makes the mistake of allowing the test to overdevelop, they will likely get a false positive, as the chemicals will develop a darker purple color the longer they are in contact.   

Reasonable interior decorators could disagree about what constitutes slate-grey over purple, what distinguishes blue from a proper violet, or when a certain hue is really fuchsia, not purple.  How, then, can we expect police officers to consistently interpret these test results?  The test results are wholly subjective and depend upon the color perception, training, and inclinations of the officer conducting the test.  Further complicating the matter is the potential for operator error (overdevelopment, for example, or breaking the ampules in the wrong sequence) and the fact that field tests – conducted, as they often are, in the field, perhaps in the dark, at the side of a busy road – are frequently administered in conditions far from ideal for discerning subtle color changes.  And Officer Friendly is susceptible to confirmation bias:  he is testing the substance because he already believes it to be marijuana, so if it’s a close call between magenta and purple, he’s likely going to see purple.     

The tests’ limitations are well-known to police officers – but as you hopefully now see, positive test results may be readily assailed by a defender armed with just a little bit of science.  

Tuesday, January 13, 2015

Far Enough

Today, the US Supreme Court ruled against the defendant in Whitfield v. US. We discussed the cert grant here. The issue was the scope of the word "accompany", as in a bank robber who forces someone to accompany him. The force of the word is that it increases the penalty to a ten-year mandatory minimum. 18 USC 2113(e).

This was a unanimous and short opinion (five pages), authored by Justice Scalia, and it could have been shorter because there was not much to say. Forced accompaniment is more than de minimus distance but does not require much -- in this case, Whitfield had a woman move a few feet from one room to the next room of her house. "We hold that a bank robber 'forces [a] person to accompany him,' for purposes of §2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance."

The only thing of slightest interest about this opinion (unless you are Mr. Whitfield) is that Chief Justice Roberts had to announce it from the bench because the opinion's author, Justice Scalia, was stuck in traffic and late to work.

Saturday, January 10, 2015

SCOTUS: Breaking ACCA News

On occasion, the Supreme Court will ask for supplemental briefing and for a case to be reargued.  It happened yesterday in Johnson v. US.

SCOTUS granted cert and heard argument last November about whether a prior conviction for possession of sawed-off shotgun was a violent crime for purposes of Armed Career Criminal Act (the one that changes the penalty for gun possession from a cap of ten years to a floor of 15 years). We talked about it here and here. The original issue was quite narrow.

Now, the Supreme Court ordered the case to be "restored to the calendar for reargument" and for supplemental briefing on this: whether the residual clause of the ACCA is unconstitutionally vague.

Justice Scalia has taken the position (that is, dissented) in other cases, notably Sykes v. US, (fleeing and eluding is a violent crime), that the clause is unconstitutionally vague. "The Court’s ever-evolving interpretation of the residual clause will keep defendants and judges guessing for years to come." This turn in Johnson is a  good sign that more of the Court may follow his lead. Because he is right. And if this is the case, it will almost certainly affect the career offender guideline, which carries essentially the same residual clause for crimes of violence.

For now, continue to preserve objections to any crimes categorized under these residual clauses. A favorable ACCA ruling could well be retroactive, as Professor Berman notes,

This strikes me as huge news, especially because I think any ruling that part of ACCA is unconstitutionally vague would be a substantive constitutional judgment that should get applied retroactively to hundreds (and potentially thousands) of federal prisoners serving mandatory minimum terms of 15 years or more. US Sentencing Commission data suggests that perhaps 5000 or more federal defendants have been sentenced under ACCA over the last decade, though I would guess the majority of these cases did not hinge on the ACCA subprovision that SCOTUS might now find unconstitutional.

Stay tuned . . .


Thursday, January 8, 2015

A Second Amendment Success Story

from the Sixth Circuit, a few weeks ago: Tyler v. Hillsdale County Sheriff's Department
The decision is 46 pages long. A short, two-page concurrence follows. Read this decision. All of it.
Here's what it is about:
28 years ago, Clifford Charles Tyler was involuntarily committed for less than one month after he underwent an emotionally devastating divorce (his wife ran away with his money and another man). As a result, he cannot possess a firearm. That is because of 18 U.S.C. 922(g)(4). It prohibits the possession of a firearm by any individual "who has been committed to a mental institution."
This is so even though Tyler (who is now 73 years old) is not mentally ill, has no history of substance abuse, and has no criminal history. The man just went through a bad divorce.
The Second Amendment says that Mr. Tyler has the right to keep and bear arms, so he sued in light of 922(g)(4)'s infringement of that Constitutional right. He had to sue because, although federal law allows relief from firearms disabilities, the program, which the ATF is supposed to administer, has no funds. And, although federal grants are available to the various states to implement their own relief-from-firearms-disabilities programs, Tyler's state of residence, Michigan, has not implemented such a program.
Now, get this, Tyler actually won. Some highlights from the decision:
  • Tyler's challenge was an as-applied challenge. In other words, he did not argue that 922(g)(4) is unconstitutional on its face (or in every application), but only that it was unconstitutional as applied to him. This is good advice for Constitutional challenges. They should all be as-applied challenges.
  • a firearms prohibition on the mentally ill was not a common thing in 1791 (because it is vital what happened over two centuries ago).
  • the Sixth Circuit applied strict scrutiny, thus requiring a compelling governmental interest and a narrowly tailored law to achieve that interest. (the Tenth Circuit, and quite a few other Circuits, apply intermediate scrutiny)
  • the government's two interests -- protection of the community and prevention of suicide -- are, in fact, compelling interests; BUT
  • 922(g)(4) is not narrowly tailored to achieve those interests in this case. The Court noted that some people overcome mental illness. It also cited the relief-from-disabilities programs as affirmative evidence that Congress actually thinks that some former mentally ill people should now be able to possess firearms.
  • the decision has a decent summary of Second Amendment challenges to other statutory firearms prohibitions (which is one reason why it is worth the read, and also worth a spot on your shelf).
This is the first decision since SCOTUS's decision in Heller to find a Second Amendment violation. Hip-Hip-Hooray

Wednesday, January 7, 2015

A Smorgasbord of Fourth Amendment Issues

The Tenth Circuit published United States v. Denson last week. The decision is perhaps more notable for what it refuses to decide than for what it actually decides. It is a Fourth Amendment case (and yes, the defendant loses). It involves the search of a house pursuant to an arrest warrant. Mr. Denson was on the lam. Officers found his name on a residential Wichita utility account. So they went to the residence, armed only with the arrest warrant (not a search warrant), entered it, and arrested Denson (they also found guns, which felons like Mr. Denson are not supposed to possess).
The Tenth reminds us that, in Payton v. New York, the Supreme Court said that "an arrest warrant founded on probable cause implicitly carries with it the authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is present within."
Initially, we note one thing that was not at issue: whether the defendant actually lived at the residence (he did). The case concerns whether the officers had "reason to believe" that Denson was at home at the time of the search.
The Court ultimately says yes, but it skirts an issue before doing so: whether "reason to believe" is synonymous with "probable cause." The Court reminds us that, under Tenth Circuit precedent, it is something less than probable cause. But other Circuits equate the phrase with probable cause. The Court avoids this conundrum by finding that the officers had probable cause to believe that Denson was at home based on four facts:
  1. Denson recently opened the utility account, and officers were unaware that he had any other residence (we pause to note that this fact alone does nothing to establish that he was home at the time of the search);
  2. Officers did not think that Denson had a job, making it likely that he would be at home at 8:30 a.m. on a weekday (not a bad point);
  3. Denson was on the lam, and where better to hide than your home? (the opposite seems equally plausible to us; why not hide out someplace other than your own home?); and
  4. the electric meter "was whirling away" on this "wintry Wichita morning" (we have no idea how this establishes Denson's presence in the home)
So, officers have probable cause to believe that an absconder is at home at 8:30 a.m. on a weekday morning so long as the officers think that the absconder is unemployed and the electric meter is "going crazy." It's funny, the Court admits: "Even together [these facts] hardly prove a suspect is at home" (we would agree with that). So, probable cause is now the equivalent of "hardly prove." Whatever that means.

The Court skirted two other issues in this one:
  1. whether fresh footprints in the snow further added to the probable cause equation (ignored because Denson claimed the officers were trespassing when they saw the prints); and
  2. whether the use of a Doppler radar device capable of detecting from outside the home "the presence of human breathing and movement within." The Court left for another day the constitutionality of this device, but hinted that a warrant might be necessary.
The case involves a second issue: whether the protective sweep of the home, after officers entered, was constitutional. The Court said yes because Denson was a fugitive gang member with a history of violent crimes, and a second resident also had an outstanding warrant. On this latter point, the Court noted that the Doplar radar apparently identified only one person in the residence, negating this justification, but then the Court backed off, suggesting that maybe the device was incapable of distinguishing between one person and several (but wouldn't this be on the government to establish?).

If you've made it this far, one final issue: whether the seizure of firearms was proper under the plain view doctrine. The Court rejected the argument that the guns were not necessarily contraband, noting that they were found in the home of a felon (think constructive possession here). So, probable cause to seize the guns existed.
 

Tuesday, January 6, 2015

More Bad News for Sex Offenders

The Tenth Circuit published a decision in United States v. Nichols last week.
Briefly, the case involves the Sex Offender Notification and Registration Act ("SORNA"). That provision requires a sex offender to register in, inter alia, the jurisdiction in which the offender "resides." But in United States v. Murphy, the Tenth Circuit tortured this statutory language and held that an offender who moves to a foreign jurisdiction (not covered by SORNA) must register in the jurisdiction in which he "resided." If anyone understands the decision in Murphy, you are doing better than us. And better than Judge Lucero, who dissented in Murphy. And better than the Eighth Circuit, who disagrees with Murphy. And better than Judge McKay, who concurred in this most recent decision affirming Murphy to note that Murphy is, indeed, just plain wrong.
We keep it brief on this issue because we cannot imagine a world in which the decision in Murphy is allowed to stand. Either the Tenth Circuit sitting en banc, or the Supreme Court, will have to step in. And perhaps the intervention will happen in Nichols. As a practical matter, if you have a SORNA case involving foreign travel and a failure to register in the former jurisdiction (i.e., where the defendant moved from, or used to reside), preserve this issue. You'll have to concede error in light of Murphy, but, again, preserve the issue for further review. Who knows, you might find yourself in Washington D.C. if you do.  
The decision in Nichols does one other thing: it rejects a nondelegation doctrine challenge to SORNA. This is the argument that Congress essentially violated separation of powers principles when it allowed the Attorney General to determine whether SORNA applied to pre-enactment offenders (i.e., people who committed their underlying sex offenses prior to SORNA's enactment). The idea is simple: those who enforce the law should not also define its reach. We think it is a great argument, and a Justice Scalia dissent seems to agree with us, but no court of appeals appears willing to step up to create the typically necessary split in the Circuits to warrant SCOTUS review (for its part, the Tenth in Nichols at least noted that the delegation was "puzzling"). We'll keep raising the issue. It makes too much sense to abandon just yet.   

Monday, January 5, 2015

Like Christmas Presents, Sentences Also Come in Packages

The Holidays derailed us for a bit. But we are back (as of yesterday), with updates on a number of recent published decisions from the Tenth Circuit. Today: United States v. Catrell.
The case involves the imposition of an illegal sentence. Ronald Catrell committed a number of fraud-related crimes. He pleaded guilty to bank fraud, wire fraud, money laundering, and aggravated identity theft. The parties agreed on a 120-month sentence via a Rule 11(c)(1)(C) plea agreement (the one that binds the district court). But then Mr. Catrell got cold feet and withdrew his plea (the opinion does not tell us why). Then he got a different type of cold feet and pleaded guilty again. This time, the parties agreed on a 132-month sentence via a Rule 11(c)(1)(C) plea agreement. So a net loss of 1 year for our indecisive defendant.
Because the aggravated identity theft conviction carries a 2-year consecutive sentence (no more, no less, and never concurrent to a non-identity theft count), the parties structured the agreed-upon sentence as 24 months on the aggravated identity theft count, consecutive to concurrent 108-month sentences on the other three counts (again, for a grand total of 132 months).
Yet, at sentencing, everyone forgot about this portion of the plea agreement, and Mr. Catrell walked away with a 54-month sentence on the aggravated identity theft count (plus 78 months on the other three counts) Because 54 is greater than 24, the sentence on the aggravated identity theft count was an illegal sentence.
So the Tenth Circuit vacated the sentence and remanded for resentencing in accordance with the terms set forth in the plea agreement (a Pyrrhic victory for our defendant). In doing so, however, the Court managed to reject arguments from both parties. First, the government's affirm-on-plain-error-review argument fell for an obvious reason: an illegal sentence is always plain, reversible error. Second, the defendant sought a windfall: vacate the 54-month sentence, but not the 78-month sentences, which would result in a total sentence of 102 months on remand (78 plus 24). There are a number of problems with this argument (the obvious is that it contradicts the terms of the (c)(1)(C) agreement). But, perhaps in the Holiday spirit, the Court noted that sentences come in packages, and, when one portion of the package goes away, the rest of it does too. The defendant made some attempts to avoid this result (trying to distinguish vacated convictions from vacated sentences (unhelpful considering that a vacated conviction results in a vacated sentence), and trying to distinguish between sentences imposed pursuant to 11(c)(1)(C) agreements (a head scratcher, considering that the defendant basically asked the Court to sentence him below the agreed sentence). Nor did the Court buy the defendant's argument that the government should have appealed the 78-month sentences. That is an interesting argument, but no match for the sentencing package doctrine, which can be used to vacate perfectly lawful sentences (see this case, where a court used the sentencing-package doctrine to vacate a firearms sentence in light of a Supreme Court case related solely to crack cocaine sentences).  
The defendant also raised a prosecutorial vindictiveness argument based on the 1-year bump in the (c)(1)(C) agreement. The Court brushed this aside, noting that the defendant could have rejected the proposed plea agreement. Not knowing much of anything about the underlying facts, that seems like a plausible conclusion; the better practice would be not to plead guilty, then withdraw the plea, then plead guilty again. We imagine good things hardly ever come from such tactics.
We end with this observation: all of this could have been avoided had the government not required a plea to the aggravated identity theft count. Why not just plead to the other counts and avoid a consecutive/concurrent conundrum? A healthy dose of pragmatism would have gone a long way in this case.

Sunday, January 4, 2015

What Is Golf?

We don't always pay attention to who authored appellate decisions. Certainly, some jurists catch our attention, like the Ninth Circuit's (former Chief) Judge Kozinski, who is smart and entertaining (skip toward the end of this post if you want some Judge Kozinski crunch), or our own Tenth Circuit Judge Gorsuch, just because the writing is so good. Justice Scalia cuts with a sharp linguistic razor in dissents, because, he says, "a good, hard-hitting dissent keeps you honest" (skip to the very end for the What Is Golf reference).

Knowing a judge's body of work is an elementary but critical point of research.  These just-beneath-the-surface facts can provide force to the argument, as it did in U.S. v. BurnsOr it can be devastating, perhaps when arguing the wrong-headedness of controlling authority to a judge who, unbeknownst to the ill-prepared attorney, wrote that prior decision. These details matter.

The issue in Burns: whether the district court judge committed plain error imposing a supervised release condition that restricted the defendant's contact with his minor daughter.

The answer: yes.

The reason: because had the error been brought to the district court's attention, the court would likely have sustained the objection. (Thus it met the third prong of plain error, but that is for another post). 

Here's the link: the district court "likely would have softened the contact restrictions if the issue had been raised" because he is the same judge who, sitting on the appellate court in 2011, authored a seminal Tenth Circuit decision condemning this same error, U.S. v. Lonjose. The Circuit was careful to (foot)note that the"district court's error was understandable because of defense counsel's failure to object." Remanded for findings consistent with Lonjose.

Back to Judge Kozinski: here, he tells you How to Lose an Appeal. "First, you want to tell the judges right up front that you have a rotten case. The best way to do this is to file a fat brief." Then, "[y]ou go to step two. Having followed step one, you already have a long brief, so you can conveniently bury your winning argument in the midst of nine or ten losers." And so on. Some suggestions are a bit dated ("make sure your photocopier is low on toner or take a key and scratch the glass so it will put annoying lines on every page"); others are timeless (call the district judge "senile or drunk with power, or just drunk"). The rest will be saved for a forthcoming post on, well, How to Lose an Appeal.  

And, finally, just for the writing, Justice Scalia on golf:
If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf—and if one assumes the correctness of all the other wrong turns the Court has made to get to this point—then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.
From PGA Tour, Inc. v. Casey, 532 U.S. 661 (2001).