Sunday, December 28, 2014

Forensic Science

From First Assistant Federal Defender Kirk Redmond:

We don’t often go to trial, which means that posts about trial issues feel unhelpful. Maybe one of the reasons we don’t go to trial is an undercritical acceptance of the forensic evidence we receive in discovery.

We shouldn’t do that.
Five years ago, the National Research Council (could there be a more authoritative name for an organization?) performed an RKO on forensic science. Fingerprints, arson investigation, handwriting analysis…there is a lot of bad science out there, leaking into courtrooms and convicting people of things they didn’t do.

Now DOJ and the National Institute of Standards and Technology have begun a review of how forensic evidence is used in court. Take their skepticism and run with it.
Handwriting analysis.

Fingerprint Matches.

Ballistics. (We just linked to Fox News).
Google will lead you wherever you need to go. But it is time to take a look at the forensic science underlying the case against your client.

Also, be sure to click on the RKO link.

Tuesday, December 23, 2014

Musings On the Presumption of Reasonableness

We've spent some time on recent published decisions from the Tenth Circuit. We'll also note one unpublished decision from last week: United States v. Morain.
The case was litigated by our very own Tom Bartee, and he has this to say about the decision:

Back in 2006, the Tenth Circuit declared that sentences within a correctly calculated Guidelines range are entitled to a presumption of reasonableness. This case, United States v. Kristl, predated the Supreme Court's decision in Rita v. United States, which is the decision  in which the Supreme Court announced that courts of appeals may -- but need not -- apply a presumption of reasonableness to within-Guidelines range sentences. Two points about the presumption, one possibly helpful and one probably not.

First (and unhelpfully), Kristl’s statement about the presumption was pure dicta. The sole issue in Kristl was whether the district court properly calculated Kristl’s criminal history. This is nothing more than an issue of procedural reasonableness. The appellate presumption of reasonableness applies only to substantive reasonableness challenges of within-range sentences. Although dicta is not controlling precedent, later Tenth Circuit decisions adopted the Kristl dicta and applied it where it matters, so the presumption now carries the imprimatur of precedent.

Second (and possibly helpful), it may be an open question in the Tenth Circuit whether the presumption actually applies to all within-Guidelines-range sentences, and in particular, to sentences imposed under the flawed childpornography guideline. In Morain, the Court pointedly avoided answering this question. The Court quoted Kristl for the proposition that “[w]e have held ‘a sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness.’” But the Court followed this with a quote from the Supreme Court's decision in Gall v. United States, and the Court italicized an important qualification to Kristl’s broad statement: “If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness.” The Court proceeded under the assumption that it could disregard the presumption. As you probably guessed, though, it found the sentence substantively reasonable nonetheless.

Despite the outcome in Morain, it may be worth attacking the presumption when applied to flawed guidelines, such as those governing child pornography, drugs, and career offenders.

Monday, December 22, 2014

More on the Armed Career Criminal Act

We discussed one aspect of United States v. Hood yesterday. The second aspect of the decision involves Mr. Hood's status as an Armed Career Criminal. The district court determined that he so qualified. Unlike the recent stories in other Circuits, which we shared last week, this one ends badly for the defendant: the Tenth Circuit affirmed.
In particular, the Court held that a prior Oklahoma conviction for pointing a firearm at a person qualified as a violent felony under the Armed Career Criminal Act (ACCA) because it included an element of threatened physical force. Or, at least the particular conviction in this case qualified as a violent felony.
The Oklahoma statute at issue criminalized a broad swath of conduct, from pointing a loaded firearm at another individual with the intent to shoot, to pointing an unloaded firearm at another individual as a prank. The Court noted that some violations of the statute would not qualify as a violent felony (we think; the Court stated that some violations "would not require a threatened use of physical force," so we take from this statement that those types of violations would not qualify as violent felonies). But, based on the charging document, and using the modified categorical approach, Mr. Hood's conviction qualified as a violent felony. This was so because the charging document alleged that Mr. Hood pointed the gun at another person "for the purpose of threatening and intimidating him." A violent felony is a conviction that has "as an element the . . . threatened use of physical force against the person of another." So, the key word here is "threatened," and the key fact is the use of a firearm. The Court is clear: "Using a firearm to threaten another is precisely the kind of threatened 'violent force' that the Supreme Court has told us the ACCA proscribes."
The Court was unconcerned that, based on the charging document, Mr. Hood might have threatened the use of a firearm with the intent to cause mental or emotional intimidation, and not physical injury. Because the use of the firearm was done in a threatening manner, it was irrelevant what injury Hood intended to inflict. So says the Court. In other words, an element involving the use, or threatened use, of physical force asks what the defendant did, not what the defendant intended to do. And, according to this decision, whenever a defendant is convicted of pointing a gun at another person in a threatening manner, the conviction qualifies as a violent felony.

We note that the charging document alleged that the defendant knowingly pointed the gun at another individual. This is not a case of recklessness or negligence.
We also note some understanding between the parties that the defendant pleaded guilty to the allegations in the charging instrument. We say this because, with charge bargaining a not-that-rare-of-a-thing, it is important to verify that your client actually pleaded guilty to the facts alleged in the charging document (and not to some other different, but legally sufficient, facts). The decision is unclear as to whether the government also produced a judgment or some other document confirming a plea to the charging document, but we will assume so in light of language in the decision.

Sunday, December 21, 2014

The Fourth Amendment and "Frantic" Movements

We are one published decision behind. Here it is:
United States v. Hood (Judge Phillips, with Judges Matheson and Moritz)
Because it has two parts (a Fourth Amendment issue and a sentencing issue), we will break it down in two separate posts. Today, the Fourth Amendment issue.
It goes like this. Oklahoma City was hit by a string of burglaries in the spring of 2012. The investigation led to Randy Milton and to his apartment complex in a high crime area in the city. Officers knocked on the apartment door, but no one answered (despite noise from within). Officers then went to inspect a vehicle identified by other apartment residents as Milton's vehicle. The car was stolen. Then a resident of the apartment complex yelled to officers that an individual had just run out of Milton's apartment. Officers gave chase and encountered our defendant, Michael Jay Hood, "facing a corner of the building with his back toward" the officers. Hood wore a winter jacket on this "unseasonably warm day." And officers testified that he was making "frantic" motions as though he was trying to remove something from his inside jacket pocket. Thinking it a firearm, an officer ordered Hood to the ground at gunpoint. Hood complied, but still appeared to be "lying atop something with his hands underneath him." When asked if he had a gun, Hood replied, "I don't know." So officers handcuffed and frisked him and found a gun in his jacket pocket. The district court found the officers' actions reasonable.
The Tenth Circuit affirmed. The issue on appeal centered on the manner of the seizure: at gunpoint and handcuffed. The Court rejected any argument that these actions turned the seizure into an arrest (we think; it is not entirely clear; the Court could have held that the evidence supported an arrest because it amounted to probable cause of something or another. The Court never uses the phrase "reasonable suspicion" or "probable cause," leaving us unsure as to what exactly this case is about). The fulcrum of the Court's analysis is its conclusion that the officers' actions were justified in light of the facts known to them at the time (high-crime area, defendant running from suspected crime house, wearing a winter jacket, "frantic" movements).
Despite the lack of clarity with the decision itself, there is nothing at all surprising about the outcome, especially with the officers' testimony that the defendant made "frantic" movements as if he was trying to remove something from his pocket. Courts routinely affirm in these types of cases (and it never seems to matter that the defendant was not the person initially suspected of wrongdoing).

Briefly, the defendant tried to argue that the government waived any argument that the use of a firearm and handcuffs was reasonable because not raised below, but the Court dismissed the argument because the government asserted below that the seizure was a proper Terry stop (and, hence, that the manner of it was constitutional).
And a Rule 404(b) issue pops up in the decision as well. Hood asserted that the reason why the officers were at the apartment complex (to investigate a string of burglaries) should have been excluded at trial, but the Court disagreed, calling this evidence "intrinsic" and necessary to "contextualize" the officers' testimony. The Court also rejected a Rule 403 prejudice argument based on its determination that the probative value of this evidence outweighed any prejudice. The analysis is perfunctory, much like it was in the decision we discussed yesterday. Yet again, for reasons we do not know, the Court published the decision anyway.

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.

Friday, December 12, 2014

Add Illinois to the Recidivist Statute Watch List

In light of a series of Supreme Court cases, this year's winner of most-likely-to-win-an-issue-on-appeal goes to the incorrect application of recidivist sentencing statutes. In other words, we challenge whether a prior conviction qualifies under some recidivist sentencing statute that increases our client's penalty range (e.g., armed career criminal and career offender), and we actually win (sometimes). It is a crazy phenomenon.
There are quite a few recent examples of this. We give you one today (from the Seventh Circuit): United States v. Jenkins (authored by Judge Kanne, joined by Judges Flaum and Sykes)
The case involves application note 6 to USSG 4A1.2, entitled "Reversed, Vacated, or Invalidated Convictions." It provides, inter alia, that convictions that "have been ruled constitutionally invalid in a prior case" are not scored with criminal history points (we take a moment to note that the phrase "constitutionally invalid" appears to be nothing more than an extremely poor way of saying "unconstitutional").
In 2012, the Seventh Circuit held a portion of Illinois's poorly-named "Aggravated Unlawful Use of a Weapon" statute (AUUW) unconstitutional under the Second Amendment. The Illinois Supreme Court followed suit in 2013. The statute was both poorly named and unconstitutional because it prohibited, among other things, the carrying of a firearm outside of the home.
So, our protagonist, Mr. Jenkins, had a prior AUUW conviction, and he received points for it at his federal sentencing in October 2013 (one month after the Illinois Supreme Court's decision). His attorney did not object, but Mr. Jenkins caught a break when his appeal was assigned to the Seventh Circuit Federal Defenders, who did two things: (1) went into state court and vacated the conviction; and (2) asserted on appeal that, in light of Note 6 to 4A1.2, the district court erred in scoring the conviction.
The Seventh Circuit agreed. But its decision did not hinge on the fact that Jenkins' prior conviction had been vacated. Instead, the Court held that, because the Illinois Supreme Court held the statute void ab initio (roughly translated to "as if it had never existed"), and because Note 6 uses the article "a" instead of "the" (as in "a prior case"), the conviction was invalid as a result of the ruling in that case.
We think that this means that any prior Illinois AUUW conviction does not score (assuming the conviction is under the voided portion of the statute). So you'll need to be aware of this if you have a client with a prior AUUW conviction. And you should probably check the constitutionality of similar statutes from other states if your client has a conviction for one of those.
One last point, and this relates to the Tenth Circuit's recent decision in Saballon-Umana and its discussion of plain error review. In a similar light, the Seventh Circuit did not hesitate to find plain error in this case, noting the obvious Guidelines mistake and its serious consequences (some 3 years on the Guidelines range). But it further noted that the plain error was missed by the probation office and the government as well: "it would be unjust to place the entire burden for these oversights on the defendant." Indeed. And we add: the district court as well.
Props to AFPD George Taseff, who orchestrated the collateral attacks in state court, and AFPD Peter Henderson, who litigated the appeal.

Thursday, December 11, 2014

Impeaching the Verdict -- Or Not -- Or Maybe

From Paige Nichols, a primarily-appellate attorney with Monnat and Spurrier:  
This week the Supreme Court decided Warger v. Shauers, a case about what kind of evidence can be used to impeach a jury’s verdict. In a unanimous opinion by Justice Sotomayor, the Court unsurprisingly held that Federal Rule of Evidence 606(b) prohibits courts from considering one juror’s sworn statement that another juror made statements during deliberations indicating that she had lied during voir dire.
This opinion is unsurprising because the Court, as Justice Sotomayor pointed out, “simply accord[ed] Rule 606(b)’s terms their plain meaning.” The Rule (full text here) prohibits, inter alia, a juror from testifying about a statement made during jury deliberations. Exceptions allow juror testimony about extraneous information or influences (bribes, unlawful scene visits, exposure to prejudicial news stories, contacts by witnesses, etcetera), and mistakes in entering the verdict on the verdict form. F.R.E. 606(b)(2).
The Rule has long been interpreted to exclude a wide range of juror testimony. A majority of the Tenth Circuit has consistently applied these limits to disallow juror testimony about some pretty unpleasant juror (mis)conduct, including rank racism and other expressions of bias during deliberations. But see this decision in United States v. Benally.
But Warger suggests that there may a constitutional light at the end of the “mental processes” tunnel. In a footnote, the Court states that “[t]here may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged. If and when such a case arises, the Court can consider whether the usual safeguards are or are not sufficient to protect the integrity of the process.” (page 10-11). Was Benally that case? I would have thought so, and I wonder whether this footnote would have made a difference to the Tenth Circuit back then.
A few other points to ponder:
  • When conducting juror interviews, counsel should always proceed with caution, and be aware that there is a strong culture of opposition to post-trial juror interviews among some lawyers and judges. In just one for instance, Federal District Judge Richard G. Kopf, who blogs at, quickly praised the Warger decision in a post scoldingly titled “After they rule against you, leave jurors alone.”
  • I respectfully disagree with Judge Kopf. Post-trial juror interviews can yield valuable information about the fairness of a criminal trial. And even if counsel can’t make use of a juror’s testimony about what happened in the jury room, that information may inspire further investigation which may itself yield “nonjurur evidence” of misconduct that is not subject to Rule 606(b). See page 10 of Warger(reciting with approval Tanner’s holding “that the defendant’s right to an unimpaired jury was sufficiently protected by voir dire, the observations of court and counsel during trial, and the potential use of ‘nonjuror evidence’ of misconduct”).
  • There is one definite upside to Warger’s and other courts’ hardline adherence to Rule 606(b)’s distinction between external influences and internal mental processes. If defense counsel learns that jurors were subjected to external influences, the government may not call upon the jurors to testify that they were not affected by those influences. In Sassounian v. Roe, 230 F.3d 1097 (9th Cir. 2000), the Ninth Circuit noted “[a] long line of precedent” distinguishing “between juror testimony about the consideration of extrinsic evidence, which may be considered by a reviewing court, and juror testimony about the subjective effect of evidence on the particular juror, which may not.” Id. at 1108. The court agreed that “having to ignore the most direct evidence of prejudice”—a juror’s own testimony—“lends an ‘Alice in Wonderland’ quality to the discussion of whether [the defendant] was actually prejudiced by the admitted jury misconduct.” Id. at 1109. “Nevertheless,” the court concluded, “the weight of authority and sound policy reasons support this view.” Id.

Wednesday, December 10, 2014

Must Read Part II: Tenth Circuit on Sentencing Error

We return to Sabillon-Umana and its discussion of the extent of a district court's authority to depart downward via USSG 5K1.1 (cooperation). Below, the government convinced the district court that it could not impose a sentence below that recommended by the government in light of its 5K1.1 motion. That was incorrect (the government acknowledged this on appeal). The short of it: "Section 5K1.1 does not grant prosecutors the power to control the length of a defendant’s sentence. Rather, it is emphatically for the court, not the government, to determine the appropriate sentencing reward for the defendant’s assistance." In fact, the government's recommendation is just one factor of five listed in USSG 5K1.1. The defense is free to argue (assuming no contrary language in a plea agreement) for a reduction greater than the government's recommendation, and the court can depart beyond the government's recommended sentence (or impose a sentence greater than the recommendation). 
But this seemingly obvious error is not what gets our attention. Instead, we are intrigued by the Court's application of the standard of review. The defense did not object in the district court (there is some debate about this), and so the defendant had to establish plain error on appeal (see Fed.R.Crim.Pro. 52(b)).

At least in the Tenth Circuit, plain error has typically meant "no relief." It is described as a "demanding" and "rigorous" requirement; one that requires a defendant to "run the gauntlet" in order to get relief. 

But in Sabillon-Umana, the Court levels the plain-error field, at least for guideline errors. Plain error review has four sequential questions that require four affirmative answers:
1) is it error?
2) is it plain error, such as a violation of a known rule?
3) does it affect the defendant's substantial rights?, and then
4) does the error seriously affect the fairness, integrity, or public reputation of judicial proceedings? 

The first two are given. On the third, "[i]f the guidelines form the essential starting
point in any federal sentencing analysis (and they do), it follows that an obvious error in applying them runs the risk of affecting the ultimate sentence regardless of whether the court ultimately imposes a sentence within or outside the range the guidelines suggest."  Got that? If the court misapplied the guidelines in the first place, maybe by assessing too much loss or by finding an unsupported quantity of drugs, it presumptively affected the defendant's substantial rights, even if a variance or departure was granted below the calculated range. If the start is wrong, the end is wrong."[T]the whole point of the guidelines is to affect the defendant’s 'substantial rights' by guiding the district court’s analysis of how much of his liberty he must forfeit to the government." 

Now, the final question, which is (or was) often fatal to the defense: does the error affect the fairness, integrity, or public reputation of the judicial proceedings? Of course is does. "[W]hat reasonable citizen wouldn’t bear a rightly diminished view of the judicial process and its integrity if courts refused to correct obvious errors of their own devise that threaten to require individuals to linger longer in federal prison than the law demands?" 

Now, presumptions can be overcome, but that will be the exception, according to the Court. The presumptions are "sensible and consistent" because "the benchmark for the entire sentencing process rests on an obviously mistaken premise."  The Court also walked back, as an accidental deviation from settled precedent, any requirement that the defendant show a "strong possibility of receiving a lower sentence on remand." This burden would be contrary to the plain-error presumption.  

Plain error does not always require remand. But the Court pointed out the small cost of remedying a guideline error: "A remand for resentencing, after all, doesn’t require that a defendant be released or retried but simply allows the district court to exercise its authority to impose a legally permissible sentence." 

The bottom line is that an obvious guideline error is plain error and should be remanded. 

Moving forward, recognize that this case is a significant shift in sentencing law in the Tenth Circuit (many of the other Circuits have sung this tune for years now). And remember yesterday's post: the (il)legitimacy of judicial findings to support guideline increases is back in play. This revamped argument calls for caution when a defendant might be asked to admit facts not necessary to a guilty plea, but that could support a Guidelines enhancement.

Post from The Volokh Conspiracy here

We end on this: the Court was openly critical of the government's arguments in this case, and it appears as if the government might have got the hint. Yesterday, it confessed error on a similar issue in a case currently pending in the Tenth Circuit (United States v. Valencia, No. 14-2091).  This is not to say that the case necessarily changed the government's position, but it was quick to pick up on the decision and to recognize the significance of it. 

Tuesday, December 9, 2014

Must Read: Tenth Circuit on Sentencing Error

This is the first of a two-part post on Monday’s Tenth Circuit decision in United States v. Sabillon Umana. This is a rich, nuanced opinion that deserves most careful attention. It’s also a fun read.

The issues appear anodyne at first glance: a guideline calculation error, a court’s 5K1.1 authority to depart, and plain error review. But the Tenth Circuit takes full opportunity to chamber the guidelines’ function, to question the court’s authority to find facts, and to make plain-error review meaningful. Here, we unpack the details of this decision, and what we can do with it.

We start with the guideline error. The district court estimated a base offense level of 32 (why?), then asked for factual justification from the probation officer. The officer responded with the type and quantity of drugs that would justify this offense level. The Circuit rejected “backing into” a particular guideline as disordered (especially since the district court, via the put-on-the-spot probation officer, made an unrealized math mistake that should have subtracted two levels from the base offense level). “[F]acts drive sentencing decisions, not the other way around." Simple enough, right? But the Circuit did not stop there (we'll give you the court's words in blue; our two cents follow in black).

“The guidelines seek to supply some sense of what other courts across the country are doing in similar cases and what sentencing experts think may be appropriate.” Okay, but many guidelines have veered far from this function. As the USSC reported, two thirds of courts apply below-guideline sentences to child pornography offenses, yet 2G2.2 remains unchanged. Neither the loss guideline table nor the actual-meth table have any expert or empirical underpinnings. These are examples of particular guidelines that should be devalued, if not outright ignored.

“[A] properly calculated guidelines sentence provides useful data, a ‘starting point’ or ‘initial’ benchmark . . .” A point to begin, not a place to end. A court is not limited to information contemplated by the guideline. This is why standard ‘guideline’ plea agreements can be so constricting and really do not conform to the law of sentencing. Even when it contains the standard provisio that all information will be available to the court, that is rather meaningless if it cannot be presented and argued for the court’s full consideration. 

“Put simply, the court is supposed to start with the facts, then consult empirics about similarly situated defendants and the expertise of the Sentencing Commission, and only then make an individualized judgment about the case at hand informed by that information.” Again, the empirics of similarly situated defendants and expertise of the Commission are not always embedded in the guideline calculation, and without that basis, the guidelines cannot reliably inform the court. 

“We admit the proper order of operations we’ve outlined rests in part on a questionable foundation. It assumes that a district judge may either decrease or increase a defendant’s sentence (within the statutorily authorized range) based on facts the judge finds without the aid of a jury or the defendant’s consent. It is far from certain whether the Constitution allows at least the second half of that equation. For starters, by "defendant's sentence," the Court presumably means the guidelines range. In other words, the Court is uncertain if district courts can find facts that either increase or decrease the defendant's guidelines range beyond the range applicable based on the jury's verdict or the defendant's admissions.

This uncertainty lies in a recent dissent from the denial of certiorari (we talked about something similar to this just yesterday). Justice Scalia wrote it. Justice Thomas joined it. So did Justice Ginsburg. The dissent states that "any fact necessary to prevent a sentence from being substantively unreasonable . . . is an element that must be either admitted by the defendant or found by the jury."
The ground zero of this debate is United States v. Booker, the most famous (infamous?) of all modern SCOTUS sentencing decisions (it made the Guidelines advisory, if you've forgotten). The decision in Booker has two parts. The first finds a Sixth Amendment violation in judge-found facts that increase a defendant's sentence (i.e., the applicable guidelines range). Justice Stevens wrote that decision, and Justices Scalia, Thomas, and Ginsburg joined it (so did Justice Souter). So the recent dissent in Jones makes sense: three Justices stating their decade-old view on the subject, but doing so in slightly different terms (terms that take into account more recent developments in sentencing law, like substantive reasonableness). And this view is what the Tenth Circuit hints at in its newest decision.
But the second part of Booker, written by Justice Breyer, and joined by then Chief Justice Rehnquist, Kennedy, O'Connor, and Justice Ginsburg, nixes any Sixth Amendment fix by excising the statutory provision making the guidelines mandatory. In other words, judge-found facts that increase the guidelines range are okay as long as the guidelines themselves are advisory, and not mandatory. This undercuts what the Tenth Circuit just said in its decision.

Or does it? Consider that there are four Justices on the Court that were not around for Booker (Roberts, Alito, Kagan, Sotomayor). And further consider that the fifth vote for the remedial fix in Booker -- Justice Ginsburg -- just joined a dissent that indubitably reads as a criticism of it. And further consider that Justice Scalia's dissent rephrases the issue in terms of substantive reasonableness, and a judge-found fact's ability to turn a reasonable sentence into an unreasonable one, and, in turn, an unconstitutional one.

So, what does this mean? Don’t give up the argument that the sentencing court cannot make fact-findings that increase the guideline range; we have confirmation that the Court holds open the question. Here, the factual context is drug type and amount. But this Sixth Amendment/substantive reasonableness issue reaches to loss amounts and other specific offense characteristics (indeed, to any Guidelines enhancement not based on a jury verdict or a defendant's admissions). And, it might also reach to prior convictions at some point (Almendarez-Torres is still the law, but it hangs by a thread).

Tomorrow, Part II: a court’s 5K1.1 authority and plain error.   

Spoiler Alert:

The Court found plain error and reversed.

Monday, December 8, 2014

Do People Matter to the Supreme Court? Probably Not

The Supreme Court agrees to hear roughly 80 cases per year. It chooses from thousands of petitions (over 8,500 last term). The recent debate on same-sex marriage reminds us that the Court rarely hears cases just because 4 Justices think the lower court got it wrong (it only takes four Justices to grant cert., and it is likely that 4 Justices find no problem with bans on same-sex marriage). If that were the case, surely the Court would have granted cert. on the issue when it had the chance.

Enter Patrick Henry Joseph. Named after a Patriot, Mr. Joseph rebelled in his own way: by selling cocaine (hard and soft). He got caught and pleaded guilty in federal court. Labeled a career offender by the district court, in part because of a prior conviction under 21 U.S.C. 843(b) (use of a communication device to facilitate a drug offense), he received a 210-month sentence, which the 11th Circuit affirmed on appeal. The sole issue on appeal involved the denial of the third acceptance-of-responsibility point (the plea was not timely, so he did not get it).

But that is beside the point. What is relevant are dates. Yes, dates.
June 14, 2013: Joseph files his opening brief.
June 20, 2013: The Supreme Court decides Descamps v. United States, a case involving the application of the categorical approach to the Armed Career Criminal Act (ACCA), a provision similar to the career offender Guideline at issue at Joseph's sentencing.
June 25, 2013: Joseph files an unopposed motion to file a replacement brief. He wants to challenge the career-offender designation (reliance on the 843(b) conviction)in light of Descamps.
July 8, 2013: motion denied.
Apparently, the 11th Circuit has an odd rule that prohibits consideration of claims not raised in opening briefs. No other court of appeals has such a rule.
Sort of. We learn from the Supreme Court that the 11th Circuit applies the rule sometimes, and sometimes not.
So, the Supreme Court has to grant cert. in this case, right? Unlike the same-sex marriage cases that were denied when no conflict in the Circuits existed (one exists now), a clear conflict exists on this weird, procedural rule.
No dice, says the Supreme Court last week, although Justices Kennedy and Sotomayor would have heard the case.
But it gets weirder. Justice Kagan, joined by Justices Ginsburg and Breyer, authors a Statement respecting the denial of cert. That Statement criticizes the Eleventh Circuit heavily, noting that its rule "forces every appellant to raise 'claims that are squarely foreclosed by circuit and even Supreme Court precedent on the off chance that a new decision will make them suddenly viable." The Statement ends with an admonition to the 11th Circuit to "reconsider" its current practice, or else the Court might grant cert in another case.
Yet, why not just grant cert. in this case? 2 + 3 = 5, and 5 is enough to hear a case.
Here's my (Hansmeier) criticism: an 11th Circuit fix in another case, or a cert. grant in another case likely does Patrick Henry Joseph no good. His petition was denied, and with that denial is the affirmance of his career offender sentence, even though he might not actually be a career offender. What is the point in that? The Statement is an unfortunate concession that the Court cares little for the individuals behind the caption. And that is a shame.
I'll end with this: the cert. petition in Descamps was granted in August 2012. The case was argued in January 2013. So the Descamps issue could have been raised in the opening brief. And this is why we bother you with cert. grants. Because preservation of issues could shorten our clients' time in prison considerably.

Sunday, December 7, 2014

Amendments Part 2: Federal Rules of Evidence

Yesterday, we discussed recent amendments to the Federal Rules of Criminal Procedure. Today: the Federal Rules of Evidence.
Two amendments, both to hearsay exceptions (go here for the text):

Rule 801(d)(1)(B) (prior consistent statements)
The amendment offers a second way in which a prior consistent statement can be admitted as not hearsay (i.e., as substantive evidence):

to rehabilitate the declarant's credibility when attacked on another ground.

That is a direct quote. Remember, this rule applies when a witness testifies and is subject to cross-examination about a prior statement. According to the Committee Notes, "the rule does not make any consistent statement admissible that was not admissible previously -- the only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well."

Rule 803(6)-(8) (business records)
The amendment alters language in 803(6)(E), 803(7)(C), and 803(8)(B). Those provisions provide that any business record admitted under a hearsay exception must be trustworthy. The old rule did not address who had the burden to demonstrate trustworthiness or untrustworthiness.
The new rule places the burden on the opponent of the evidence to establish untrustworthiness.

Saturday, December 6, 2014

Amendments to the Federal Rules of Criminal Procedure

Last week, new amendments to the Federal Rules of Criminal Procedure went into effect. You should be aware of the changes, as well as the fact that the printed versions that we (might) have on our desks are not entirely correct anymore.
Amendments were made to 5 rules. Go here for the text of the new rules.

Rule 5 (initial appearance) and Rule 58 (petty offenses and misdemeanors): were amended to require judges at pretrial proceedings to advise noncitizens of their right to consular notification arising under Article 6 of the Vienna Convention on Consular Relations.

Rule 6 (the grand jury):
this is a technical amendment correcting a statutory reference in subsection (e)(3)(D).

Rule 12 (pretrial motions):
quite a few changes to this rule.
  • subsection (b)(1) now provides that any "defense, objection, or request" may be made prior to trial (assuming it can be raised prior to trial);
  • subsection (b)(2) now addresses motions that may be made at any time, and includes only those motions that challenge a court's jurisdiction;
  • subsection (b)(3) now addresses motions that must be made prior to trial, and enumerates 13 types:
    • improper venue;
    • preindictment delay
    • speedy trial violation;
    • selective or vindictive prosecution;
    • grand jury or preliminary hearing challenges;
    • duplicitous indictment;
    • multiplicitous indictment;
    • lack of specificity in indictment;
    • improper joinder;
    • failure to state an offense in the indictment
    • suppression;
    • severance; and
    • discovery.
  • subsection (c)(1) now provides that any motion must be filed prior to the start of trial (unless the court sets an earlier deadline);
  • subsection (c)(2) now provides that a court may extend or reset a pretrial motion deadline at any time prior to trial;
  • subsection (c)(3) now provides that a court may consider an untimely motion for good cause;
Rule 34 (arresting judgment):
was amended to provide that a court may arrest judgment only if it does not have jurisdiction of the charged offense. 

Friday, December 5, 2014

Mistakes of Fact Are for the Jury to Consider

Compliments of Assistant Federal Defender Carl Folsom III (Topeka, KS):
In United States v. Boling, the Seventh Circuit recently reversed two convictions for making false statements in connection with the purchase of a firearm, under 18 U.S.C. § 922(a)(6), because the district court had prohibited Boling from making a mistake-of-fact defense. This case is a good example of the type of defenses that exist, even if they are not explicitly codified by statute.
In 2012, Boling was facing Indiana state charges, which included a felony count of strangulation. At some point in July of 2012, the prosecutor offered a plea agreement to misdemeanor offenses, which would result in dismissal of the felony. This is important because on July 14, 2012, Boling attempted to purchase a firearm from a federally licensed firearms dealer, and had to fill out ATF From 4473, which asked him if he was “under indictment or information in any court for a felony[?]” Boling answered “no.” He also provided a former address, where he no longer resided, but where he maintained an office. These answers led to the charges for making false statements in connection with the purchase of a firearm under 18 U.S.C. § 922(a)(6).
Prior to trial, Boling offered an Old Chief stipulation that he was under indictment for a felony. The trial court rejected the stipulation because Boling claimed that he did not know he was still under felony indictment when he attempted to purchase a firearm. At trial, the government established that Boling was facing the felony strangulation charge at the time he attempted to purchase the firearm. It did so via the testimony of the state prosecutor. Boling wanted to cross-examine the prosecutor about the misdemeanor plea offer that was extended to Boling in July of 2012, but the district court would not allow this testimony.
Boling wanted to claim at trial that he did not know that the felony charge was still pending at the time he attempted to purchase a firearm (a.k.a. a mistake-of-fact defense). And he wanted the jury to know that he was only convicted of disorderly conduct, because the strangulation charge was prejudicial and needed to be rebutted.  But the trial court prevented Boling from both of these options. The trial court allowed evidence of the felony strangulation charge, but would not allow Boling to counter with the timing of the misdemeanor plea offer or the fact that the charges all resulted in a disorderly conduct conviction.
On appeal, the Seventh Circuit explained that “[a] mistake-of-fact defense relieves a person of criminal liability where a reasonable mistake of certain facts means that the person did not have the culpable mental state required for the commission of the offense.” The court pointed out that § 922(a)(6) required the government to prove that “Boling knew that his statement was false.” The court also explained that “§ 922(a)(6) requires the government to prove either that the defendant made the statement with the intent to deceive the firearms dealer, or that the statement was of such nature that it was likely to deceive the dealer.”
The Seventh Circuit held that Boling should have been able to present evidence of the misdemeanor plea offer and should have been able to cross examine the state prosecutor about the same. The court reversed Boling’s convictions, noting that it was a denial of his due process right to present a defense for the district court to limit cross-examination of the fact of the misdemeanor plea offer and that the error was not harmless. The court also explained that the denial of the Old Chief stipulation was not an abuse of discretion, but that “we see no reason why evidence that Bowling strangled or gave alcohol to a minor should have been presented to the jury.” The court stated that, “[a]t a minimum, having allowed the jury to hear such evidence, the court should have permitted the defense to lessen the sting by presenting evidence that Bowling eventually pleaded to a misdemeanor crime for disturbing the peace.”