Tuesday, February 26, 2019

How to object to 404(b) evidence (and its fallout)

Sometimes civil cases involve issues familiar to criminal-law practitioners.

In Crew Tile Distribution, Inc., the plaintiff, Crew Tile, filed a breach-of-contract claim against Porcelanosa. Porcelanosa countersued, claiming that the contract allegedly breached was forged. The trial court denied Crew Tile’s motions in limine to exclude 404(b) evidence of an earlier and also allegedly forged contract between the same parties.

This was error, but harmless, the Tenth Circuit held, in a decision that offers several lessons to criminal-defense lawyers:

The trial court erred in admitting the evidence. Porcelanosa never identified any proper purpose for admitting the evidence---it just parroted the exceptions listed in Rule 404(b). The proper purposes cited by the district court in admitting the evidence were “divorced from Porcelanosa’s theory of its case,” which was essentially that Crew Tile’s operator was a serial forger. In other words, Porcelanosa wanted to use the evidence for propensity purposes.

But alas! This error was harmless, because the trial court properly limited Porcelonosa’s use of the evidence “to prove the parties’ prior business relationship.”

But wait! Porcelanosa exceeded those limits by arguing to the jury that the evidence proved Crew Tile’s operator was “a forger.”

But alas! Crew Tile did not object to this argument, instead meeting it head on in its own arguments and evidence. “Having failed to make a timely objection to the evidence at the time that it was presented and having personally developed [the challenged evidence] . . . [Crew Tile] waived any right that [it] might have otherwise had to challenge this evidence on appeal.”

And thus: Object if the basis offered for 404(b) evidence is inconsistent with its true purpose; object if the court does not properly limit the evidence; and object if the government improperly uses the evidence.

We’ve said it before and we’ll say it again: Object, object, object!

Thanks to Tom Bartee for this post.

Sunday, February 24, 2019

Can tapping a tire be a search? The Fifth Circuit says yes.

In United States v. Richmond, No. 17-40299, 2019 WL 491779 (5th Cir. Feb. 8, 2019), the Fifth Circuit recently held that the “relatively minor” act of tapping a tire qualifies as a search under the trespass-based approach detailed in United States v. Jones, 565 U.S. 400 (2012), when it is done in order to learn whether the tire contains contraband.
While patrolling on a highway in Texas, a state trooper observed that the tires on the truck Ms. Richmond was driving were “shaking,” “wobbly,” and “unbalanced.” The trooper initiated a traffic stop after watching the vehicle cross over the fog line onto the shoulder of the highway. While walking to the rear of the truck, he noticed that the bolts on the passenger-side rear tire “had been stripped as [if] they had been taken off numerous times.” At this point, the trooper “pushed on the tire with his hand,” which elicited a “solid thumping noise” and raised his suspicions that the tire may contain drugs. A later examination of the tires at a dealership revealed that they contained methamphetamine.

On appeal, Richmond argued that the trooper’s initial touching of the tire was a search, and that the search was not supported by probable cause. The court held that under a trespass analysis, “[the trooper’s] tapping of the tire was a search regardless of how insignificant it might seem.” The Fifth Circuit explained that under the trespass-based approach detailed in Jones, “a trespass ‘must be conjoined’ with ‘an attempt to find something or obtain information,’” i.e., investigatory intent, in order to constitute a search. This two-pronged approach “prevents a mere physical touching, such as when an officer leans on the door of a car while questioning its driver,” or other “incidental conduct,” from becoming a search.

In Ms. Richmond’s case, the court determined that the trooper’s conduct satisfied both prongs of the test outlined in Jones. The court reasoned that tapping the tire was a trespass similar to “attaching a GPS to the exterior of a vehicle,” as in Jones, because of the physical contact made with the vehicle in both instances. Because the trooper initiated the contact with the tire in order to “confirm his suspicion that it contained more than just air,” the tap became a search within the meaning of the Fourth Amendment. The court further explained that it was unlikely that the information that the trooper had when he made contact with the tire constituted probable cause to conduct the search.
Ultimately, however, the court determined that the trooper did have “probable cause to believe that the tire posed a safety risk” based on his observations of the tire’s wobble and “the truck veering outside its lane.” Thus, the court held that public safety interests justified the search, and affirmed the district court’s judgment denying Richmond’s initial suppression motion. Although Richmond did not ultimately prevail in her appeal, the court’s conclusion that “the brief physical examination of the tire was subject to the Fourth Amendment under the recently revived trespass test” will benefit other defendants, and it serves as a reminder to consider other possible applications of the trespass-based approach outlined in Jones.
The decision can be found here. 

Sunday, February 17, 2019

A bathrobe alone does not clothe someone with apparent authority

Apparent authority and consent from a third party may provide law enforcement with an exception to the warrant requirement where the officers reasonably believe that the third party has joint access or control over the property for most purposes. But the Seventh Circuit reminds us this past week in United States v. Terry that apparent authority’s exception cannot apply where officers veil themselves in ignorance by failing to inquire further.

Related imageIn Terry, officers relied on the prompt verbal and written consent to search defendant’s residence obtained by a woman who answered the door at 10 a.m. in a bathrobe and looking sleepy. Prior to relying on her consent, the officers did not know who she was, what her relationship was to the defendant, why she was in the apartment, how long she had been in the apartment, or whether she lived there. "Sometimes the facts known by the police cry out for further inquiry, and when this is the case it is not reasonable for the police to proceed on the theory that ‘ignorance is bliss.’” (Quoting LaFave.) Conviction vacated.

And of course, even if the officers had gained the requisite information to demonstrate that the woman had authority over the residence, it would still be at issue whether she had authority over the containers searched therein. See, e.g., United States v. Salinas-Cano, 959 F.2d 861, 862 (10th Cir. 1992) (“[O]wnership and control of property does not automatically confer authority over containers within it.”) (citing United States v. Karo, 468 U.S. 705 (1984)).

Tuesday, February 12, 2019

Advocating for probation

When imposing a sentence, federal judges are required to consider the need for the sentence "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a)(2)(D).

And yet "imprisonment is not an appropriate means of promoting correction and rehabilitation." 18 U.S.C. § 3582(a). See also Tapia v. United States, 564 U.S. 319 (2011).

What's a federal judge to do?

Consider alternatives to imprisonment, that's what. And defense counsel now have a roadmap for encouraging the judge to do just that, with U. Chicago Law Professor Erica Zunkel's new article 18 U.S.C. § 3553(a)’s Undervalued Sentencing Command: Providing a Federal Criminal Defendant with Rehabilitation, Training, and Treatment in “the Most Effective Manner.”

A few lessons from the article:

First, federal law commands judges to consider the need for correctional treatment "in the most effective manner." BOP cannot provide that treatment. Again, federal law prohibits imposing a prison sentence for rehabilitation purposes. And BOP "faces numerous hurdles to providing 'the most effective' care for defendants due to overcrowding, staffing shortages, high medical costs, and budget cuts."

Second, defense counsel should present the sentencing judge with specific evidence and data contrasting correctional treatment relevant to counsel's client inside the BOP with correctional treatment available outside the BOP.

Third, defense counsel should show the sentencing judge how a non-prison sentence promotes other sentencing goals as well. For instance, even the Supreme Court has recognized that probation constitutes punishment, as it "substantially restrict[s]" a person's liberty. Gall v. United States, 552 U.S. 38, 48 (2007). And counsel can present studies to argue that a probationary sentence with correctional treatment can do a better job of deterring crime and protecting the public than can a sentence of imprisonment.

Sunday, February 10, 2019

Hold the government to its burden

Recently, in United States v. Munksgard, No. 16-17654, 2019 WL 361432 (11th Cir. Jan. 30, 2019), the Eleventh Circuit issued an opinion which serves as a reminder to defense attorneys to hold the government to its burden and argue—after the evidence is closed—that the government failed to offer sufficient evidence at trial to prove that a bank is FDIC-insured. Although the defendant in Munksgard did not prevail in his appeal, the case was sufficiently close to provoke a detailed dissent and a strong word of warning from the majority to government prosecutors.
Mr. Munksgard was charged under 18 U.S.C. § 1014, which “criminalizes the act of knowingly making a false statement in order to obtain a loan from a bank that is insured by the FDIC.” Munksgard’s appeal raised the issue of whether the government had presented sufficient evidence to prove that the bank was FDIC-insured at the time of the offense.
As the dissent noted, the government provided no direct evidence that the bank was FDIC-insured in 2013 when the offense was committed. Instead, the government presented the following evidence at trial: (1) certification which indicated that the bank was FDIC-insured at the time of its charter in 1990, decades before the offense; (2) testimony that the bank was insured at the time of trial in 2016; and (3) testimony that the bank “isn’t required to ‘renew’ its FDIC certificate ‘every so often.’”
Although the court concluded, “albeit reluctantly,” that a reasonable juror could find that the bank was insured by the FDIC at the time of the offense, it noted that “[f]or reasons that leave us mystified, in cases involving federally insured banks—bank robbery, bank fraud, etc.—the government continues to stub its toe in seeking to prove the seemingly straightforward, but nonetheless jurisdictionally ‘indispensable,’ element of FDIC insurance.”
As the majority stated, “let this be a warning to federal prosecutors: You are (as the author’s mother used to say) cruisin’ for a bruisin’. Don’t apologize—do better.”
The decision can be found here.

Sunday, February 3, 2019

Through the gateway of "actual innocence"

Actual innocence is one gateway to overcoming procedural bars to habeas relief set forth by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). That is, to prevent “a fundamental miscarriage of justice,” the Court has carved out a rule that an otherwise procedurally-barred petition under AEDPA is not barred where a petitioner can make a credible showing of actual innocence by (1) presenting new, reliable evidence, and (2) demonstrating by a preponderance of the evidence that it is more likely than not that not that a reasonable juror would have reasonable doubt.

Pathway Between Green Trees Brown Steel Gate during DaytimeLast week, in Finch v. McKoy, No 17-6518, 2019 WL 324667 (4th Cir. Jan. 25, 2019), the Fourth Circuit reaffirmed the essential nature of the actual-innocence gateway to habeas review.

In 1976, a North Carolina jury  convicted Charles Finch of first-degree murder of a gas station owner in a robber-gone-wrong. The state presented no physical evidence implicating Mr. Finch in the crime but rather relied on one eyewitness’s testimony and identification of Mr. Finch as the shotgun shooter. Nearly 40 years later, in 2015, Mr. Finch filed a federal habeas petition presenting new evidence in support of his wrongful conviction. 

The new evidence includes expert testimony regarding the due-process violation stemming from an impermissibly suggestive lineup scheme, which—in addition to new evidence that the murder weapon was not a shotgun but rather a pistol—tainted the credibility of the state’s star eyewitness such that, as the Fourth Circuit held, a reasonable juror would likely doubt that witness’s pretrial (and in-court) identification of Mr. Finch, as well as his account of the events.  

Despite this convincing new evidence, the district court nevertheless dismissed the petition as untimely under AEDPA. But, enter the Fourth Circuit to reverse after finding Mr. Finch sufficiently set forth new evidence that, under the totality of the circumstances, would “likely fail to convince any reasonable juror of his guilt beyond a reasonable doubt.” In doing so, the Fourth Circuit has granted Mr. Finch—now 80—the opportunity to challenge the veracity of his convictions and any miscarriages of justice at a hearing on the merits of his claims.

And for curious readers, the recording of oral arguments before the Fourth Circuit can be found here.