Sunday, April 28, 2019

Cert. grant: application of “knowingly” to § 922 offenses

While this cert. grant is undoubtedly on the radar of the statutory-construction geeks among us, it is one for all practitioners to note. 

Last week the Supreme Court heard oral arguments in United States v. Rehaif. At issue:

Whether, to be convicted under § 922(g), the term “knowingly” in § 924(a)(2)’s mens-rea and penalty provision applies only to the element of possession, or whether it applies to two elements: (1) possession, and (2) the individual’s prohibited status (in this case, one who is in the United States illegally), which renders the possession unlawful.

Image result for water h20Rehaif had entered the country on a student visa conditioned on his pursuing a full course of study. Over time, Rehaif failed the majority of his classes at Florida Institute of Technology, and the Institute dismissed him. But Rehaif remained in the country. As a result of his terminated student status, the government sought charges against Rehaif, arguing that his use of firearms and purchase of ammunition at a Florida shooting-range was unlawful under § 922(g) and § 924(a)(2).

At trial, over Rehaif’s objection, the district court instructed the jury that “[a]n alien illegally or unlawfully in the United State is an alien whose presence within the United States is forbidden or not authorized by law.

The Justices appeared keenly aware during argument last week that a ruling in Rehaif’s favor—that the knowingly provision applies to possession, as well as to prohibited status—would have broad implications, especially so for the more-oft charged felon-in-possession. If “knowingly” applies to both elements, not only would the government need prove that an individual possessed a firearm or ammunition, but also that that individual knew he was a felon at the time. This may well be Rehaif's effect.

As Justice Gorsuch noted in a dissent while sitting for the Tenth Circuit, it is “hardly crazy to think that in a § 922(g)(1) prosecution Congress might require the government to prove that the defendant had knowledge of the only fact (his felony status) separating criminal behavior from not just permissible, but constitutionally protected, conduct.”

Practice pointer: if a client is charged under § 922(g), preserve this issue, unless you’ve strategically stipulated to it. Especially in the case where the government cannot meet its burden in establishing your client’s knowledge of his prohibited status, it could make all the difference. (See, e.g., United States v. Games-Perez (Gorsuch, J., dissenting)). 

Thursday, April 25, 2019

Sixth Circuit uses Supreme Court case, pun, to find "chalking" tires to be an unreasonable search.

As lawyers are often aware (as frequent short-term parkers near courthouses), parking enforcement often keeps track of how long a particular car has been in a particular location by 'chalking' the tires of a car during every circuit they walk (or drive).

But, according to the Sixth Circuit,  chalking the tires of a car is a search under the property-based approach to the Fourth Amendment that was revived in United States v. Jones, 565 U.S. 400 (2012). The Sixth Circuit found chalking to be a search under a trespass theory that includes placing chattel "in contact with some other object." And the chalking also includes "an attempt to find something or to obtain information" under Jones because it identifies how long a vehicle was parked in a certain place. Finally, because the search was not reasonable nor did it implicate a community caretaking function, "we chalk this practice up to a regulatory exercise, rather than a community-caretaking function." 

Besides appreciating the pun, this case is a good reminder to keep an eye out for what actions law enforcement take in relation to our clients property and how any contact might implicate the Fourth Amendment. Although the property-based approach was forgotten for some time, we should not forget that it is a viable option in the Fourth Amendment context.

Wednesday, April 24, 2019

Who gets better results for clients: the fighter or the friend?

Image result for Carey Haughwout
This is a fascinating comparison between two Florida public defender offices that have very different approaches. Both are professional and civil. But the similarities end there. The marked contrast in philosophy and style raised the question: which gets better results for their clients? Read on:

Litty’s a marathon runner who is best friends with her region’s state attorney and married to a recently retired judge. She believes the system works best when her assistants get along with their opponents.
Haughwout smokes cigarettes as she paces the pavement outside the courthouse awaiting verdicts in cases she takes to trial. She maintains only a cordial relationship with her county’s top prosecutor and pushes her assistants to fight for everything from bond relief to acquittals.
Each believes her approach brings the best results for clients.
But Litty’s clients spend twice as long behind bars for the same crimes, an investigation by The Palm Beach Post and Sarasota Herald-Tribune found.
The  article, Sharp contrast stands out in public defenders Carey Houghout and Diamond Litty, goes on to detail the empirical study, comparison, and results from over 800 cases.

Try not to take up smoking, but otherwise we would all do well to emulate Carey. Be professional, be civil, but don’t let the small things pass by unnoticed, and certainly not in the name of prosecutorial comradery. When the government violates the discovery provisions, ignores deadlines, listens to our attorney-client phone calls . . . . when they say, as they most always do, “no harm, no foul”, or “I didn’t listen to your calls, but I could have,”-- don’t let that go.  

When we look back, blaming the government for unfair prosecutions or outcomes, remember we bear some of that responsibility because, at times, we didn’t do our work, we didn’t read the plea agreement carefully, we didn’t object to relevant conduct, we waived appeals without knowing the issues. Our system is designed to be adversarial, and that is the only way it will work.


Wednesday, April 17, 2019

Knock-and-talks: Not always a free ticket for law enforcement

Knock-and-talks are fine, right? And that's because answering the door in response to knocking is a consensual act, right? This is true, but only to a point. And that point was well made by E.D. Mich. Judge Goldsmith this month in United States v. Mills, et al., No. 16-cr-20460, ___ F.Supp. 3d ___, 2019 WL 1510958 (E.D. Mich. April 5, 2019).

Ten to fifteen officers, including SWAT team officers in full gear, with long guns and shields, executed a search warrant at an apartment that shared a back wall with an apartment where one Mr. Jackson was "couch surfing." They broke a large sliding glass door to get in, at the same time loudly announcing that they were police officers.

During the search, two officers approached Mr. Jackson's apartment. They used a "law enforcement knock" on the door (Mr. Jackson described their knock as "banging loudly"), and announced themselves with a "tone of presence." Mr. Jackson had already heard the breaking glass and had looked out his window and seen a lot of officers, guns, and dogs. He did not answer his door.

Ten minutes later, the officers tried again. Mr. Jackson did not answer.

But as the officers were walking away, Mr. Jackson and a companion came out of the apartment. The officers stopped and frisked them, finding drugs, which led to a search warrant for the apartment (and the discovery of more drugs).*

Under the totality of circumstances, this "knock and talk" was not consensual, ruled Judge Goldsmith, in a detailed opinion that is a reminder to us all not to throw in the towel simply because an encounter at first blush looks like it will pass the knock-and-talk test. The test does not exclude a seizure finding simply because officers knocked on the door. The test is whether the officers made a show of authority and whether the person moving to suppress evidence submitted to that authority. It asks whether a reasonable person would feel free to leave, or decline the officers' request, or otherwise terminate the encounter. And thus all of our usual seizure factors (number of officers, tone of voice, surrounding circumstances) are relevant---even if the encounter is described by law enforcement as a simple knock-and-talk.

And so go forth, read Mills, and move to suppress the fruit of that knock-and-talk.

* Mr. Jackson's "couch surfing" status was sufficient to give him a legitimate expectation of privacy in the apartment, allowing him to challenge the later execution of the search warrant in addition to the seizure of his person. But that's a separate issue.

Tuesday, April 9, 2019

Cooperating? Make it count.

In United States v. Doe, 865 F.3d 1295 (10th Cir. 2017), the Tenth Circuit held that the government's refusal to file a substantial-assistance motion under 18 USC 3553(e)---where such a motion was contemplated in a plea agreement---may be subject to either a constitutional challenge or a contractual challenge (or both). Earlier this month, the Tenth Circuit clarified Doe, in United States v. E.F.

First, remember that if your sentencing goal is below both the guidelines range and the statutory mandatory minimum, you will need both USSG 5K1.1 and 18 U.S.C. 3553(e) motions from the government. The principles of Doe apply to both types of motions, and apply as well if the government files one type of motion but refuses to file the other (the Tenth Circuit only assumes this latter point for purposes of E.F.'s appeal, but suggests that such application "makes sense").

Second, a Doe contractual challenge proceeds in three steps: (1) the defendant must allege bad faith; (2) the government must rebut that allegation with facially plausible reasons; and then (3) the defendant must come forward with evidence to question the government's proffered reasons. As to step (2), it is facially plausible for the government to withhold a substantial-assistance departure motion if the client withholds information about ongoing criminal activity. "[F]ull cooperation surely requires disclosing valuable information, particularly about ongoing criminal activity." This is an important point to emphasize with any client who is interested in cooperating.

Third, if you are going to complain about the government not filing a motion, be prepared to meet Doe step (3). Defendant E.F. failed to satisfy this step, and therefore lost his challenge both in the district court and on appeal.

Sunday, April 7, 2019

Redefining adolesence

We have previously blogged about the important advancements in science over the last two decades that continue to further our understanding of the adolescent brain and its development into our mid-20s. These advancements necessarily inform the arguments we raise when representing youthful offenders at every stage of a criminal prosecution, regardless of the charges.  

In granting a successive federal habeas petition last month, the District of Connecticut's Chief Federal Judge Janet C. Hill has added another important precedent to the mix. (Luis Noel Cruz v. United States, 11-cv-00787-JCH; United States v. Cruz, 94-cr-00112-JCH-16, Docket Entry 2118 (Amended Judgement).)

Luis Noel Cruz was 15 years old when he became entangled with the Latin Kings. Five months after his 18th birthday, Luis carried out orders from above—murdering a perceived snitch (and a New Haven detective’s son) at point-blank range and chasing after and holding down another target as a fellow gang member shot him four times. At age 19, Luis was sentenced to four concurrent life-without-parole sentences.   

On March 15, however, Chief Judge Hill reduced Luis’s federal sentence to 35 years, offering Luis the chance the live his final years as a free man. In doing so, the Court relied upon the important line of Supreme Court precedent and its progeny handed down since Roper’s 2005 issuance (discussed here), as well as the critical, defense-offered testimony of Laurence Steinberg—a Temple University professor and renowned expert on adolescent brain development.

Steinberg’s research informed the Supreme Court in its own decisions regarding adolescent brains and criminal justice. Steinberg’s testimony in Luis’s case is a noteworthy resource for a cogent explanation of the parts of the brain particularly significant during adolescence—the cognitive control and the limbic systems—and their impact on youth decision-making. (See Docket Entry 111, Transcript of 9/26/17 hearing.) Steinberg further attests to why a bright-line-at-18 can no longer stand given that advancements in research since 2005 demonstrate adolescence in terms of brain development spans into the mid-20s.

At a hearing held this February on his federal habeas petition, Luis testified that he was no longer “that stupid, close-minded kid who hurt so many with his actions.” His attorney peppered the briefing and verified at the hearing the “alchemistical transformation” that Luis has made over the past two decades behind bars.

As J.D. Salinger captured it, “The mark of the immature man is that he wants to die nobly for a cause, while the mark of the mature man is that he wants to live humbly for one.” (The Catcher in the Rye.) 

When it comes to a young offender, remember to paint the full picture. The fact that youth matters cannot be overstated.