Thursday, December 27, 2018

Generic descriptions aren't enough for reasonable suspicion

11:00 am: Two "suspicious" men in a white Cadillac outside a Wells Fargo in Flagstaff, Arizona are seen heading east. One is a Native American man wearing a Bud Light hat and a checkered hoodie. One of the men may be wearing glasses.

11:41 am: Two men rob a Wells Fargo in Winslow, Arizona. One is wearing a Bud Light hat, the other a checkered shirt.

12:28-ish pm: Officer Phillips sees a white Cadillac on I-40 130 miles away from Winslow, drives alongside and peers in the darkly tinted window, and thinks the driver has glasses and the facial features of a Native American. He pulls the Cadillac over, solely to investigate the robbery. Was this a legal stop?

gold vintage car in macro shot photographyTwo out of three Tenth Circuit judges said no, in United States v. Martinez. "White Cadillac" and "potentially Native American" are simply too generic to link the car on the highway with the car seen in Flagstaff and Winslow---especially absent any evidence that Officer Phillips saw anyone in the car wearing a Bud Light hat or checkered clothing.

“A white Cadillac on an interstate highway isn’t specific; nor is a driver with Native American 'facial features'—especially in Arizona.”

Order denying motion to suppress reversed.

Tuesday, December 25, 2018

Prior consistent statements are not always admissible

When is a prior consistent statement admissible to rehabilitate a witness, and when does its admission constitute impermissible bolstering? The Tenth Circuit recently clarified the rule in United States v. Magnan.

It's all about the chronology and the basis for impeachment. Let's start with chronology:

FRE 801(d)(B)(i) authorizes the admission of prior consistent statements "to
to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying." (Emphasis added.)
If the defense theory is that the declarant (say, the complainant in a child sex case) has consistently lied about the defendant, then the complainant's prior consistent statements don't rebut that charge---they simply repeat the lie. And thus:
T-0: Complainant develops motive to lie
T-1: Complainant says X to mother
T-2: Complainant says X to police
T-3: Complainant says X to social worker
T-4: Complainant says X at trial
The defendant's cross-examination of the complainant at trial about her motive to lie does not open the door to the complainant's prior consistent statements under 801(d)(B)(i). The same motive existed for all of those statements. They do not rebut the charge of motive.
But if:
doll in boxT-0: Complainant has no motive to lie
T-1: Complainant says X to mother
T-2: Complainant says X to police
T-3: Complainant is offered praise or rewards (a pretty doll!) by social worker
T-4: Complainant says X to social worker
T-5: Complainant says X at trial
In this scenario, once the defense presents evidence that the social worker influenced the complainant's testimony, the government is free to present the complainant's earlier statements, to show that they were consistent with her trial testimony before any motive to fabricate arose.
Okay, now, what about FRE 801(d)(B)(ii)? It authorizes the admission of prior consistent statements "to rehabilitate the declarant's credibility as a witness when attacked on another ground Doesn't that open the door to prior consistent statements if the defense so much as cross-examines the declarant?
No, it does not.
Tread carefully here, and don't let the government get away with a broad reading of this rule. As the Tenth Circuit explains in Magnan, only some types of attacks will trigger the rule.
For instance, if the defense claims inconsistency: The complainant told mother Y, but told the jury X, then the government may present the complainant's prior consistent statements of X to the police and the social worker to show that most of her statements were consistent.
Or if the defense claims that the complainant has a faulty memory, the government may present the complainant's prior consistent statements to show that her memory is consistent with what she said earlier, closer in time to the events.
But if the defense is simply that the complainant is lying, wanted attention, has an axe to grind, wanted the defendant out of the house---her prior consistent statements do nothing to rehabilitate her credibility. They are not admissible.
So says the Tenth Circuit.

Thursday, December 20, 2018

Changes in Drug and 924(c) Penalties: The First Step Act

The First Step Act passed Congress this week, and should be enacted by Friday. This Act lessens significant drug and firearm penalties and expands safety valve availability. It also has a “prison reform” section, which we will address in our next post.

Here, we highlight some of the penalty changes. More detailed analyses will follow, as it is more complicated than I describe below. This is just to introduce what you need to know today. Hold off on negotiations or sentencings until you know whether and how the Act may affect your case. These changes are not retroactive—you probably can’t fix this later.

851 enhancements. With one prior serious drug felony, the mandatory minimum is 15 years instead of 20. For two, the mandatory minimum is now 25 years instead of life. 
Note: Kansas USAO is one of the top ten districts in the nation for 851 filings.

And it is no longer any "felony drug offense.” A “serious drug felony” is:
  •   described in § 924(e)(2) (generally punishable by more than ten years in prison),* and
  •   client actually served more than 12 months' imprisonment, and
  •   client was released within 15 years of the commencement of the instant offense.

Unfortunately, 851s can now also be triggered by prior “serious violent felonies”, not just drug offenses. Those are:
  •   defined in § 3559(c)(2) (includes inchoate offenses but limits to force-against-person felonies), and 
  •  client served more than 12 months' imprisonment, but 
  •  no staleness limitation.

Safety Valve. Now allows up to 4 CHC points and still qualify, as long as none are 3-point offenses or 2-point violent offenses. Also, this counting “excludes any criminal history points resulting from 1-point offense.” Applies only to a conviction entered on or after the date of enactment.

Practice note: remember this implicates the 2-level reduction under § 2D1.1(b)(17); ask for the equivalent variance, because the change will not yet appear in the guidelines.

Multiple 924(c)s. Multiple 924(c) convictions can no longer be consecutively stacked within one case (5 years + 25 years + 25 years = 55 years). Now, the convictions must be successive, that is, the conviction of the first 924(c) must be final before the second 924(c) offense occurs. This applies to any offense committed before the enactment if the sentence has not yet been imposed.

Ex post facto. The general rule of thumb for offenses committed before the Act but not yet sentenced is this: If the changes help your client, they should apply. If they  hurt your client (increases the punishment), it should be barred by ex post facto  considerations.

Retroactive Provisions. The Act made the Fair Sentencing Act of 2010 (crack v. powder statutory revisions) retroactive. Questions?  Contact for answers.

-- Melody

*federal drug felony or state drug trafficking felony with a maximum term of imprisonment of ten years or more, see U.S. v. Romero-Leon, 622 Fed. Appx. 712 (10th Cir. 2007).

Wednesday, December 19, 2018

Reading & 'riting & 'rithmetic

Federal practitioners need no longer be befuddled by the Commission’s persistent misspelling of marijuana. The Commission amended USSG § 2D1.1 and the relevant commentary, and replaced the term “marihuana equivalent” with “converted drug weight.”

We updated and renamed our spreadsheet as the Converted Drug Weight Calculator to conform to amendments to the United States Sentencing Guidelines effective November 1, 2018.
When a drug case involves multiple controlled substances, the base offense level is calculated using U.S.S.G. 2D1.1, Application Note 8(B). This guideline sets a converted drug weight for each gram of the commonly encountered controlled substances. The sum of the converted drug weight is then used to determine the base offense level under the drug quantity table found at 2D1.1(c).

The Converted Drug Weight Calculator does not account for the reduction in offense level when the accused receives a mitigating role as provided in U.S.S.G. 2D1.1(a)(5), or any applicable reduction for acceptance of responsibility under U.S.S.G. 3E1.1. The spreadsheets also do not factor enhancements for specific offense characteristics found at 2D1.1(b), or enhancements from Chapter 3 or Chapter 4, Part B of the Guidelines. Finally, our spreadsheets do not apply to offenses covered by U.S.S.G. 2D1.11, Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy.
A summary of other revisions to USSG § 2D.1.1 effective November 1, 2018, can be found here.

Thank you, David Freund, for both the spreadsheet and this post.

Sunday, December 16, 2018

A trash pull that produces scant evidence of a marginal offense does not provide probable cause to search the home

So found the Fourth Circuit last Friday in United States v. Lyles, affirming the district court’s grant of the defendant’s motion to suppress.

In Lyles, based on a hunch that an individual may be relevant to a homicide investigation, police conducted a search of four trash bags found near the curb of the individual’s home. Within the trash bags they found “three empty packs of rolling papers, a piece of mail addressed to the home, and three marijuana stems. That is all.” Based on that, the officers sought and obtained a search warrant to search the home in toto. Firearms were found therein, and Lyles was charged with felon-in-possession.

Person Standing Near Door JambIn affirming suppression, the Fourth Circuit first stressed the unreliable nature of evidence derived from trash pulls in general: “Precisely because curbside trash is so readily accessible, trash pulls can be subject to abuse. Trash cans provide an easy way for anyone so moved to plant evidence. Guests leave their own residue which often ends up in the trash.”

And here, to permit “the indiscriminate rummaging through a household” based on the finding of a single marijuana stem (or three) from a curbside trash pull cannot withstand constitutional scrutiny. Allowing “comprehensive searches following minor infractions would create,” the Lyles court recognized, “a serious and recurring threat to the privacy of countless individuals.”

Nor could the good-faith doctrine salvage the government’s illegally-obtained evidence where, “objectively speaking, what transpired here is not acceptable.”

Sunday, December 9, 2018

“Encouraging or inducing” an alien to remain held unconstitutionally overbroad

Last week, in United States v. Sineneng-Smith, the Ninth Circuit vacated  convictions for encouraging and inducing an alien to remain in the United States for the purposes of financial gain, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) & 1324(a)(1)(B)(i), finding the statute unconstitutionally overbroad because it impermissibly criminalizes a substantial amount of constitutionally-protected expression.

broken snow flakes on waterSpecifically, subsection (iv) of that statute provides for a felony prosecution where one “encourages or induces” an alien to come, enter, or reside in the United States if the defendant knew, or recklessly disregarded the fact that such coming to, entry, or residence is or will be in violation of the law.

As an example of the statute's impermissible infringement on protected expression, the Ninth Circuit noted the doting grandma who could face felony charges for urging her grandson to overstay his visa by saying, “I encourage you to stay.” The Ninth Circuit, too, highlighted the numerous examples of professionals, such as attorneys, whose speech may be chilled by the breadth of subsection (iv) given that, under the statute’s clear scope, an “attorney’s accurate advice could subject her to a felony charge.”

As a result? The statute is unconstitutionally overbroad given that “[t]he burden on First Amendment rights is intolerable when compared to the statute’s legitimate sweep.” Convictions vacated.

Tuesday, December 4, 2018

Who, other than Congress, gets to define criminal law? The AG? The DEA? The USSC?

Three pending/recent cases remind us that there may be limits when federal agencies act in ways that extend the reach of the criminal law.
In Gundy v. United States, the Supreme Court will decide whether the nondelegation doctrine allows the attorney general to decide whether to apply SORNA’s registration requirements to pre-SORNA offenders. More generally, Gundy raises the question of who, other than Congress, gets to define criminal law.
In United States v. Phifer, the Eleventh Circuit recognized that the rule of lenity limits an agency’s power to extend the reach of criminal law through its interpretation of its own regulations. In 2014, the DEA exercised its delegated authority to add drugs to the schedules of controlled substances on an emergency basis to schedule butylone and its “positional ... isomers.” Phifer was later charged with possessing ethylone, which qualified as a controlled substance only if it constituted a positional isomer of butylone. DEA had earlier created a regulatory definition of “positional isomer,” and ethylone was a positional isomer of butylone under this definition. But by its terms that regulatory definition applied to permanently scheduled drugs, whereas butylone had been scheduled on a temporary basis. Phifer argued that the court should instead apply the definition of “positional isomer” that was accepted in the scientific community, under which ethylone was not a positional isomer of butylone.
The Eleventh Circuit found that the regulation defining “positional isomer” was ambiguous as to whether it governed temporarily scheduled drugs. The government argued for Auer deference, under which courts defer to the promulgating agency’s interpretation of an ambiguous regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Auer deference would have been fatal here. But the Eleventh Circuit rejected the doctrine, reasoning that in a criminal case whose outcome turns on the meaning of an ambiguous regulation, the rule of lenity trumps Auer. Regulations underpin many federal criminal prosecutions. Phifer recognizes an important limitation on the reach of regulations.

Finally, in United States v. Havis, the Sixth Circuit questioned circuit precedent that deferred to the Sentencing Commission's interpretation of the Guidelines (which are approved by Congress) via the commentary (which is not). As the concurring judge put it, deference to agency decisionmaking is problematic enough in civil cases, but when deference to the Sentencing Commission extends a defendant’s prison time, “alarm bells should be going off."

Thanks to Tom Bartee, Branch Chief, Kansas City, Kansas FPD for this post.

Sunday, December 2, 2018

Do only 2-4% of child-abuse complainants lie? Can an expert say so to a jury?

It’s well settled that it’s the jury’s critical and exclusive function to make witness-credibility determinations. Hence the Tenth Circuit’s unequivocal finding this last week in United States v. Magnan that error occurs when an expert witness usurps the role of the jury by placing a mathematical estimate on the rate of false accusations by victims.

In Magnan, the defendant was facing numerous counts of various sex crimes, including multiple counts of sexual abuse of a minor. At trial, the government’s expert witness cited to studies regarding false accusations by children, and summarized the studies’ conclusions as follows:

[What the studies determined was that] the rate of false disclosures by or false allegations exclusively by a child was in the 2 to 4 percent range. Some literature goes as high as 5, maybe a little higher. But the standard studies that are frequently quoted are 2 to 4 percent.

The Tenth Circuit’s conclusion? The expert’s citation to the studies that only 2-4% of children lie about being sexually abused was the equivalent of vouching for the alleged victims. And by impermissibly bolstering the credibility of the witnesses, the government’s expert usurped the jury’s exclusive function.

Magnan is a valuable precedent to have in your pocket, especially when moving pretrial to exclude such impermissible evidence from being introduced in the first place.