Wednesday, July 31, 2019

"This ends here": no more sentencing based on acquitted conduct (in Michigan state court, anyway)

The Tenth Circuit has long held---as have other circuits---that a district court may consider acquitted conduct as relevant conduct at sentencing.

It's time to ask the circuits to reconsider. This week, the Michigan Supreme Court held that "due process bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted." In People v. Beck (available here), the majority explained why this conclusion is not foreclosed by existing United States Supreme Court decisions. The majority also offered an impressive list of judges and commentators who have criticized the use of acquitted conduct at sentencing, including Justice Kavanaugh when he was on the DC Circuit (see here).

The Michigan decision was based not on the Michigan state constitution, but on the due process clause of the Fourteenth Amendment to the United States Constitution. Chances are good that the state will petition the United States Supreme Court for a writ of certiorari. Will the High Court bite? I don't know, but it won't hurt our clients to start preserving the issue (and it might hurt them if we don't).

Sunday, July 28, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:


In Eaton v. Pacheco, a federal district court partially granted Section 2254 relief to Mr. Eaton, vacating his Wyoming death sentence. But the district court affirmed Mr. Eaton's convictions for murder and other crimes, and refused to bar the state from conducting new death-penalty proceedings. On appeal, the Tenth Circuit affirmed, holding that (1) the district court was not required to hold an evidentiary hearing on Mr. Eaton's ineffective-assistance-of-counsel-claims; (2) the district court did not err in denying those claims; (3) the district court did not err in refusing to bar further death-penalty proceedings; and (4) Mr. Eaton's Brady claim was waived (as to sentencing) and beyond the scope of his certificate of appealability (as to guilt).

Of particular interest to postconviction practitioners are Eaton's discussions of Pinholster; of stand-alone IAC claims versus IAC as cause/prejudice to excuse procedural default; and of the need for specificity in requesting Section 2254 relief.

The Tenth Circuit also reminds all appellate practitioners in Eaton that arguments raised perfunctorily in an opening brief, or for the first time in a reply brief will be considered waived.

Sentencing: organizer/leader versus manager/supervisor

Check out United States v. Rubio-Sepulveda (unpublished) for a detailed discussion of what makes an organizer/leader versus a manager/supervisor under USSG 3B1.1. In this case the Tenth Circuit held that the district court clearly erred when it applied the organizer/leader enhancement to Mr. Rubio-Sepulveda.
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Thursday, July 25, 2019

How to get a Franks hearing

What makes a good Franks motion? To find out, check out Judge Dillon's order granting a hearing in United States v. Anderson, No. 7:19-cr-00027, 2019 WL 3307841 (W.D. Va. July 23, 2019).

In Anderson, the search warrant affidavit at issue (1) failed to clarify that the affiant was relying on controlled buys conducted by two (not just one) confidential informants (and not conducted by the affiant himself); (2) made no statements concerning either confidential informant's credibility; and (3) omitted information that the first confidential informant had been caught with a narcotic during a previous controlled buy and had been terminated from the investigation.

This detailed offer of proof was sufficient to warrant a Franks hearing:

"[W]hat the magistrate did not know, and could not have gleaned from the totality of the affidavit, is that there were two different confidential informants, that no information about reliability or trustworthiness had been provided for either of them, and that the first confidential informant was in possession of narcotics during one of the earlier controlled buys from Anderson. Therefore, looking to the omissions and the affidavit as a whole, the court finds that Anderson has also made a substantial preliminary showing under the materiality prong that the omitted information was material and necessary to the finding of probable cause."

Sunday, July 21, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Waiver of Right to Counsel

When a person charged with a crime seeks to proceed pro se, the district court must ensure that the person's waiver of counsel is knowing and intelligent. Among other things, the district court must properly warn the person of the need to adhere to federal procedural and evidentiary rules. In United States v. Hansen, a tax-crimes prosecution against a sovereign citizen, the district court failed to do just this, rendering Mr. Hansen's waiver inadequate. Convictions and sentences vacated.

Fourth Amendment

In United States v. Pittman (unpublished), the Tenth Circuit affirmed the district court's denial of Mr. Pittman's motion to suppress, reminding us along the way that the Federal Rules of Evidence do not apply at a suppression hearing.

Thursday, July 18, 2019

"Sloppy study of the laws" leads to suppression

Image result for standing by running carWe learned a few years ago in Heien v. North Carolina, 574 U.S. 54 (2014), that the exclusionary rule does not apply to the fruit of a police seizure based on an objectively reasonable mistake of law.

But what about an earnestly believed mistake of law?

If that belief is not objectively reasonable, then it cannot support the seizure.

So held D. Kan. Judge Teeter in a recent order suppressing the fruit of a traffic stop for leaving a running car "unattended." "Unattended" as used in the Topeka ordinance at issue does not apply to a car that is simply "unoccupied" while its driver remains nearby. The seizing officer's earnest belief to the contrary was not reasonable. Applying the exclusionary rule in this circumstance will deter "a sloppy study of the laws" that officers are duty-bound to enforce.

Evidence suppressed.

Sunday, July 14, 2019

Tenth Circuit Breviaries

Fourth Amendment

When and for how long may a passenger be detained during a traffic stop? "So long as law enforcement retains the ‘need to control the scene’—here, for at least the duration of a consent search of the vehicle—the longstanding interest in officer safety outweighs any additional intrusion created by investigatory detention to a passenger’s personal liberty." That's the lesson of United States v. Gurule. The Gurule Court also held that law enforcement's frisk of Mr. Gurule during this traffic stop was reasonable.

Conditions of Release

A person may move to amend the conditions of his or her pretrial release under 18 U.S.C.  § 3145(a)(2). Fed. R. Crim. P. 59(a)'s framework (for appeals from matters referred to a magistrate) does not apply to this type of motion. And thus, in United States v. Doby, the Tenth Circuit held that the district court erred in denying Mr. Doby's Section 3145 motion to amend as untimely under Rule 59.

Predicate Offenses

An Oklahoma felony conviction for conspiracy to shoot with intent to kill is not an ACCA predicate, despite its inclusion of an overt-act element. United States v. Wartson (unpublished). Read Wartson for a good discussion of how the categorical approach works under the ACCA's element-of-force clause (the predicate offense must do more than merely involve the use or threatened use of force, it must include an element of force).

Federal Expungements

Federal expungements of arrests, acquittals, and convictions, though rare, do exist, at least for now in the Tenth Circuit. Want to know more? Read United States v. Trzaska (unpublished).

Thursday, July 11, 2019

Is your "alien" client really a US citizen?

Image result for citizenshipFederal records indicate that between 2007 and 2015, more than 1,500 US citizens spent time in immigration detention. And those are the just the numbers acknowledged by the government. Is your unlawful entry/reentry client really a US citizen? Read this article about citizens illegally detained by ICE, and get inspired to challenge the government's case for alienage.

Remember: Challenging alienage is not as complicated as trying to undo an underlying removal order. Alienage is an essential element that the government is required to prove. Demand exculpatory discovery regarding this essential element. Make the government prove this element at trial.

Sunday, July 7, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Fourth Amendment

Image result for ankle monitorIn United States v. Mathews, the Tenth Circuit held that, under the totality of circumstances, ATF investigators reasonably searched Mr. Mathews’s historical GPS data (collected from his ankle monitor while he was under a state community supervision order). This was a legal question that the district court appropriately resolved without an evidentiary hearing. Read this case for a fuller understanding of the law regarding warrantless searches involving people on state parole/probation.

FRE 702/Daubert

Mathews also reminded us that “Daubert does not mandate an evidentiary hearing.” And that if we want to preserve a challenge to the reliability of an expert’s opinions, conclusions, and methodologies, we must do more than simply challenge the expert’s credentials. Specificity in making Daubert objections is key to appellate review. 

Fourteenth Amendment/Due Process

In case you didn't know, "[e]xposing a person's naked body involuntarily is a severe invasion of personal privacy" implicating due-process concerns. Consequently, the district court properly denied qualified immunity to six deputy sheriffs who walked a man in their custody through the public area of a hospital completely unclothed but for a pair of orange mittens. So said the Tenth Circuit in Colbruno v. Kessler, a § 1983 case.

Monday, July 1, 2019

Rehaif v. United States: Scienter separates "wrongful from innocent" conduct

Under federal law, certain people cannot possess firearms based on their status: felons, fugitives, those lacking legal immigration status, and so forth. See 18 USC sec. 922(g).  Previously, the Tenth Circuit held that to convict someone of this crime, the only mens rea required was "knowledge that the instrument possessed is a firearm.” The government did not have to prove that the person knew of their ineligible status.

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Justice Breyer
But that changed with the Supreme Court's decision in Rehaif v. United States last week, in a 7-2 opinion by Justice Breyer.:
We hold that the word "knowingly" applies both to the defendant's conduct and to the defendant's status. To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.
Rehaif was convicted of possessing a firearm while he was in the country without legal immigration status, under sec. 922(g)(5). He had been here on a student visa, but that lapsed. At trial, the jury was instructed that the "United States is not required to prove" that Rehaif "knew that he was illegally or unlawfully" in the United States. He was convicted, and the Eleventh Circuit upheld the conviction.

The Supreme Court did not agree. Emphasizing the text of the statute, the Court required the presumption of scienter to separate "wrongful from innocent" conduct.
It is therefore the defendant's status, and not his conduct alone, that makes the difference. Without knowledge of that status, the defendant may well lack the intent needed to make his behavior wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally do not attach.
The Court offered two examples:
If the provisions before us were construed to require no knowledge of status, they might well apply to an alien who was brought into the United States unlawfully as a small child and was therefore unaware of his unlawful status. Or these provisions might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is "punishable by imprisonment for a term exceeding one year."
To break it down, Rehaif requires that the government prove in a felon-in-possession case, that,

1) the person had a prior disqualifying felony (punishable by more than one year in prison) and 
2) that the person knew that they were convicted of a  disqualifying felony at the time of the alleged possession.

These are not the same element. Proof that the person was convicted of a felony years before is not the same as proof that they knew they were a felon at the time of the possession.  Someone may have been convicted of a felony, but then believed they could have a gun once they were off supervision. Or they may have been told they were convicted of a felony, but that conviction does not disqualify because it was not punishable by more than one year in prison.

With Rehaif,  the grand jury must find as an element that the defendant actually knew their status at the time of the possession; it must be alleged in the indictment as an element; and the jury must be so instructed.

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Justice Alito
Justice Alito and Thomas dissented, and angrily so. The dissent seemed less concerned about whether the decision was correct and more concerned about the fallout.
The decision will create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions. Applications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts. A great many convictions will be subject to challenge . . . 
Let's hope so.

-- Melody