In United States v. Green, No. 14-12830 (Sept. 29, 2017) (Julie Carnes, Jordan, Robreno), the Court revised its earlier panel opinion from December 2016 in light of the recent en banc decision in Vail-Bailon.
Relying on Vail-Bailon, it held that the defendant's Florida felony battery conviction satisfied the elements clause. The panel removed its earlier holding that the "touching or striking" component of Florida battery law was divisible, and that the defendant's offense involved a striking under the modified categorical approach. That discussion was no longer necessary in light of Vail-Bailon's categorical holding. The remainder of the original panel opinion was unmodified; the summary of that original opinion can be found here: http://defensenewsletter.blogspot.com/2016/12/green-harmless-rule-404b-errors.html
Friday, September 29, 2017
Wednesday, September 27, 2017
Griffith: Evidentiary Hearing Required on IAC Claim Alleging Failure to Research Drug Quantity Determination
In Griffith v. United States, No. 15-11877 (Sept. 26, 2017) (Ed Carnes, Rosenbaum, Dubina), the Court concluded that the district court erred by failing to hold an evidentiary hearing a 2255 motion alleging ineffective assistance of counsel.
The motion alleged that trial counsel was ineffective by failing to argue that some waste materials in the drug manufacturing process should not have been included as a “mixture or substance” in the drug quantity determination. After reviewing the case law on that subject in depth, it concluded that, accepting the allegations as true, counsel was deficient for failing to research circuit precedent on the issue--namely, whether certain liquids used to make methamphetamine were "usable" and thus countable. The Court also concluded that this deficient performance was prejudicial because the drug quantity determination raised the guideline range and triggered a mandatory minimum penalty, and there was nothing in the record indicating that these errors did not affect his sentence. In footnote 14, the Court said that this conclusion was consistent with the recent decision in Beeman, because, if his allegations were proven and he faced an erroneously high guideline range, then he would have likely received a lower sentence. After an extended discussion, the Court found it unnecessary to address the applicability of Molina-Martinez to the 2255 context.
The motion alleged that trial counsel was ineffective by failing to argue that some waste materials in the drug manufacturing process should not have been included as a “mixture or substance” in the drug quantity determination. After reviewing the case law on that subject in depth, it concluded that, accepting the allegations as true, counsel was deficient for failing to research circuit precedent on the issue--namely, whether certain liquids used to make methamphetamine were "usable" and thus countable. The Court also concluded that this deficient performance was prejudicial because the drug quantity determination raised the guideline range and triggered a mandatory minimum penalty, and there was nothing in the record indicating that these errors did not affect his sentence. In footnote 14, the Court said that this conclusion was consistent with the recent decision in Beeman, because, if his allegations were proven and he faced an erroneously high guideline range, then he would have likely received a lower sentence. After an extended discussion, the Court found it unnecessary to address the applicability of Molina-Martinez to the 2255 context.
Friday, September 22, 2017
Beeman: Initial 2255 Motion Bringing ACCA/Johnson Claim Fails to Meet Burden of Proof to Show that Sentencing Court Relied on Residual Clause
In Beeman v. United States, No. 16-16710 (Sept. 22, 2017) (Julie Carnes, Edmondson, Kathleen Williams), the Court held that an initial 2255 movant bringing an ACCA Johnson claim failed to meet his burden of proof, because he could not prove that it was more likely than not that the sentencing court relied on the residual clause, as opposed to another clause.
As an initial matter, the Court agreed that the 2255 motion was in part timely under 2255(f)(3). His motion alleged that his prior conviction for Georgia aggravated assault was no longer a violent felony, both because it did not satisfy the elements clause after Descamps and because it did not satisfy the residual clause after Johnson. Although the Court found that the Descamps aspect of that claim was untimely, it found that the Johnson aspect was timely.
However, it affirmed on the ground that the movant could not meet his burden to show that the sentencing court had relied on the residual clause. The Court relied heavily on the burden of proof in 2255 proceedings being on the movant, and it refused to place that burden on the government merely because sentencing courts did not specify the clause on which they relied. To meet the burden of proof on a Johnson claim, the movant must show that it was more likely than not that the sentencing court relied on the residual clause. Where the record is inconclusive in that regard, or where it is just as likely that the court relied on the residual clause as on another clause, then the movant cannot meet his burden. This is a fact-specific question in each case. In that case, the sentencing record was silent, and there was no precedent at the time of sentencing holding or suggesting that the prior conviction qualified only under the residual clause. In that regard, the Court rejected the movant's argument that the residual clause had served as a default for many statutes. In effect, the Court adopted the earlier dicta in Moore over the earlier dicta in Chance, but applied that reasoning in the context of an initial (not successive) 2255 motion.
Judge Williams dissented. She opined that a movant can meet his burden under Johnson to show that he was sentenced under the residual clause by showing that his ACCA enhancement could not have been properly sustained on any other clause. Because the prior conviction in that case likely did not satisfy the elements clause, she found that he had met his burden of proof. She concluded: "I fear that the practical effect of today's opinion is that many criminal defendants like Beeman who were, in fact, sentenced under a constitutionally infirm statute will be denied their right to seek relief to which they may very well be entitled by the holdings of the Supreme Court."
As an initial matter, the Court agreed that the 2255 motion was in part timely under 2255(f)(3). His motion alleged that his prior conviction for Georgia aggravated assault was no longer a violent felony, both because it did not satisfy the elements clause after Descamps and because it did not satisfy the residual clause after Johnson. Although the Court found that the Descamps aspect of that claim was untimely, it found that the Johnson aspect was timely.
However, it affirmed on the ground that the movant could not meet his burden to show that the sentencing court had relied on the residual clause. The Court relied heavily on the burden of proof in 2255 proceedings being on the movant, and it refused to place that burden on the government merely because sentencing courts did not specify the clause on which they relied. To meet the burden of proof on a Johnson claim, the movant must show that it was more likely than not that the sentencing court relied on the residual clause. Where the record is inconclusive in that regard, or where it is just as likely that the court relied on the residual clause as on another clause, then the movant cannot meet his burden. This is a fact-specific question in each case. In that case, the sentencing record was silent, and there was no precedent at the time of sentencing holding or suggesting that the prior conviction qualified only under the residual clause. In that regard, the Court rejected the movant's argument that the residual clause had served as a default for many statutes. In effect, the Court adopted the earlier dicta in Moore over the earlier dicta in Chance, but applied that reasoning in the context of an initial (not successive) 2255 motion.
Judge Williams dissented. She opined that a movant can meet his burden under Johnson to show that he was sentenced under the residual clause by showing that his ACCA enhancement could not have been properly sustained on any other clause. Because the prior conviction in that case likely did not satisfy the elements clause, she found that he had met his burden of proof. She concluded: "I fear that the practical effect of today's opinion is that many criminal defendants like Beeman who were, in fact, sentenced under a constitutionally infirm statute will be denied their right to seek relief to which they may very well be entitled by the holdings of the Supreme Court."
Wednesday, September 20, 2017
Williams: Upholding 6am Search Pursuant Arrest Warrant and as a Valid Protective Sweep
In United States v. Williams, No. 16-16444 (Sept. 20, 2017) (Tjoflat, Hull, William Pryor) (per curiam), the Court affirmed the denial of the defendant's motion to suppress.
First, the Court concluded that the search of an outbuilding adjacent to the defendant's residence was lawful, because the search was a reasonable entry pursuant to an arrest warrant for the defendant. The totality of the circumstances supported the agents' belief that the defendant lived on the property, either in the main residence or in the outbuilding (both were possible living spaces), and that he was present in one of those two buildings at the time the warrant was executed (since his car was there and it was early in the morning).
Second, the Court alternatively concluded that the search of the outbuilding, while the defendant was being arrested in the main residence, was a valid protective sweep. The outbuilding was a separate structure 20 feet away, there was noise indicating that drug distribution activities might be occurring on the property, and there were three cars parked in the driveway, suggesting that more people might be on the premises and pose a danger.
Finally, the Court, applying plain error, rejected the defendant's argument that an arrest warrant executed at approximately 6am was invalid. The agent testified that the warrant was not executed before 6am, the beginning of daytime hours under Rule 41. And, in any event, even if the warrant was executed a few minutes before 6am, there was no evidence that the agents did do so deliberately or that his arrest would not have otherwise occurred. Thus, any technical non-compliance with Rule 41 would not require suppression.
First, the Court concluded that the search of an outbuilding adjacent to the defendant's residence was lawful, because the search was a reasonable entry pursuant to an arrest warrant for the defendant. The totality of the circumstances supported the agents' belief that the defendant lived on the property, either in the main residence or in the outbuilding (both were possible living spaces), and that he was present in one of those two buildings at the time the warrant was executed (since his car was there and it was early in the morning).
Second, the Court alternatively concluded that the search of the outbuilding, while the defendant was being arrested in the main residence, was a valid protective sweep. The outbuilding was a separate structure 20 feet away, there was noise indicating that drug distribution activities might be occurring on the property, and there were three cars parked in the driveway, suggesting that more people might be on the premises and pose a danger.
Finally, the Court, applying plain error, rejected the defendant's argument that an arrest warrant executed at approximately 6am was invalid. The agent testified that the warrant was not executed before 6am, the beginning of daytime hours under Rule 41. And, in any event, even if the warrant was executed a few minutes before 6am, there was no evidence that the agents did do so deliberately or that his arrest would not have otherwise occurred. Thus, any technical non-compliance with Rule 41 would not require suppression.
Thursday, September 07, 2017
Masino: Indictment Sufficiently Alleged Federal Gambling Offense Based on Florida Bingo Statute
In United States v. Masino, No. 16-15451 (Sept. 7, 2017) (William Pryor, Ed Carnes, Moore), the Court reversed the dismissal of an indictment charging a violation of the federal gambling statute.
The issue was whether an indictment alleging a violation of Florida's bingo and gambling statutes sufficiently alleged an element of the federal gambling statute--namely, that the business is an illegal gambling business, which turned on whether it "is a violation" of state law. The Court concluded that it did, because there were at least some violations of Florida's bingo statute that could render the business an illegal gambling business under federal law. For example, the business would be illegal if it allowed charities to sponsor the event without their direct involvement, or if it did not return all bingo proceeds to the players. The Court therefore did not address whether Florida gambling statutes could serve as a basis for upholding the indictment.
One defendant cross-appealed regarding the court's failure to dismiss the count of the indictment in its entirety. The Court, however, declined to exercise its discretion to consider that cross appeal under the doctrine of pendant appellate jurisdiction.
Focia: Rejecting Second Amendment Challenge to 922(a)(1) and (a)(5), and Upholding "Alternative Sentence"
In United States v. Focia, No. 15-15653 (Sept. 6, 2017) (Ed Carnes, Rosenbaum, Dubina), the Court affirmed the convictions and sentence for dealing firearms without a federal license, in violation of 18 U.S.C. 922(a)(1)(A), and selling firearms to unlicensed residents of other states, in violation of 18 U.S.C. 922(a)(5).
The defendant challenged the sufficiency of the evidence on his 922(a)(5) convictions on two grounds. First, he argued that the government failed to prove that he and the transferee were not residents of the same state. But the Court identified various pieces of circumstantial evidence suggesting that he resided in Alabama, while the transferees resided in other states. Second, he argued, for the first time on appeal, that the government failed to prove that he lacked a firearms license. But the Court, applying a deferential standard, found that it did, relying on the defendant's own testimony.
The defendant challenged the jury instructions for the 922(a)(1)(A) conviction, arguing that the pattern instruction given allowed him to be convicted for conduct not criminalized under the statute. The Court found that the statute was designed to criminalize the selling of guns as a business (whether as the sole means of income or as a side business), but not to criminalize sporadic selling or selling merely to improve or modify a personal collection. The defendant's motivation was the test. The Court agreed with the defendant that, by omitting the exclusion of "hobbyist" firearm dealing, the pattern instruction would allow the jury to convict a defendant for non-criminalized conduct. It recommended that the instruction be modified to clarify that hobbyist activities are excluded. However, the Court found the error harmless in this case, because the evidence reflected that the defendant was not a mere hobbyist, but rather was a savvy dealer who sold weapons on the Dark Web for profit.
Next, the defendant challenged the constitutionality of 922(a)(1) on the ground that it represented a "prior restraint" on his Second Amendment rights by criminalizing unlicensed firearms dealing. The Court rejected that argument, finding that the First Amendment "prior restraint" doctrine does not apply to the Second Amendment, joining five other circuits.
The Court also rejected the defendant's constitutional challenge to 922(a)(5), finding it less burdensome on Second Amendment rights than other statutes it had previously upheld. This statute prohibited only the transfer of a firearm from an unlicensed person in one statute to an unlicensed person in another state, which, unlike other statutes previously upheld, did not completely prohibit the possession or acquisition of a firearm.
Finally, the defendant raised three challenges to the calculation of his guideline range, but the Court found it unnecessary to address them. Because the district court ruled that, even if those challenges were successful, he would have imposed the very same 51-month sentence, any guideline error was harmless. That was so even though the 51-month sentence would have required an upward variance if the guideline challenges were valid. The Court found that this alternative sentence was sufficiently justified and substantively reasonable under the 3553(a) factors.
Jeri: Failure to Continue Airport Trial in Light of Late Disclosure was Harmless Error
In United States v. Jeri, No. 16-11418 (Sept. 5, 2017) (Hull, Marcus, Clevenger), the Court upheld the defendant's drug-trafficking convictions.
The defendant first challenged the district court's denial of a motion to continue when the government, on the morning of trial, turned over a video taken at the airport showing the drugs removed from the defendant's luggage. The Court agreed that the denial of a continuance was error and counseled more patience in the future. But it found that the defendant "has not come close" to showing substantial or specific prejudice, because the video only showed the drugs after they were removed from the luggage. Thus, they did not show that the drugs were removed only from the defendant's checked bags, as opposed to his carry on bag, and the video did not otherwise exculpate him.
The Court rejected the defendant's remaining arguments. It rejected a Brady challenge to the government's late disclosure of the video on the ground that it was neither exculpatory nor material to the defense, and it rejected a due process challenge to the exclusion of the video at trial on similar grounds.
The Court rejected the exclusion from evidence of controlled calls between the defendant and his handler on the ground that they were hearsay, irrelevant, and not admissible under the rule of completeness. And, in any event, any error was harmless.
The Court next rejected the defendant's argument that the court limited his cross examination of two government witnesses, finding that the exclusion was proper on hearsay grounds, and any error was harmless in any event.
Next, the Court rejected the argument that a law-enforcement lay witness crossed the line into giving expert testimony by drawing on his experience interviewing drug couriers, and, again, it found that any error was harmless. The Court also rejected the argument that the witness had opined on the ultimate issue in the case by opining that the defendant's interview answers were not truthful. The Court also rejected an argument that a government witness impermissibly testified about drug-courier profiles, but rather testified only about street value, quantities, methods, and general drug mule techniques, etc..., and did not testify about the defendant's knowledge.
The Court rejected the argument that the court erred by giving a deliberate ignorance instruction. It found that ample evidence supported the instruction. It also found ample evidence of actual knowledge, and the court was permitted to give both instructions.
Finally, in light of the rulings above, the Court rejected the defendant's cumulative error argument.
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