In Scott v. United States, Nos. 15-11377, 16-11950 (May 23, 2018) (Rosenbaum, Jill Pryor, Bartle), the Court held that second-or-successive Brady claims are always subject to the gatekeeping criteria in 2255(h), even if the petitioner could not have reasonably discovered the basis of the claim sooner, and there is a reasonable probability that timely disclosure would have resulted in an acquittal.
The Court reluctantly determined that this outcome was dictated by its prior precedent, which reached that same conclusion in the state-prisoner context of 2254. However, in a lengthy analysis, the Court opined that this prior precedent was incorrect, conflicted with Supreme Court precedent and the Suspension Clause, and improperly rewarded the government for its unfair prosecution, thereby undermining the justice system. In the Court's view, an actionable Brady claim that a diligent petitioner could not have reasonably been expected to discover should not be considered "second or successive," and thus should not be subject to the stringent gatekeeping criteria. The panel urged the full Court to convene en banc in order to reconsider its prior precedent to the contrary. The Court also concluded that counsel was not ineffective for failing to investigate further after taking the government at its word that it had produced all Brady material; the Court, however, did not foreclose the possibility of ineffective assistance of counsel where obvious red flags call the government's assurance into question.
Thursday, May 24, 2018
Wednesday, May 23, 2018
Touset: No Reasonable Suspicion Required for Forensic Electronic Searches at the Border, Splitting with Two Other Circuits
In United States v. Touset, No. 17-11561 (May 23, 2018) (William Pryor, Julie Carnes, Corrigan), the Court held that reasonable suspicion is not required for a forensic search of an electronic device at the border, and, alternatively, reasonable suspicion existed.
The Court saw "no reason why the Fourth Amendment would require suspicion for a forensic search of an electronic device when it imposes no such requirement for a search of other personal property." The Court refused to afford electronic devices "special treatment" just "because so many people now own them or because they can store vast quantities of records or effects," as border agents continued to bear the responsibility of preventing the importation of contraband regardless of advances in technology. Only highly intrusive border searches of a person's body required suspicion, and that reasoning did not apply to electronic devices. The Court acknowledged that the Fourth and Ninth Circuits have required reasonable suspicion for forensic searches of electronic devices at the border, but the Court was "unpersuaded" by them. The Court's recent decision in Vergara made clear that the Supreme Court's decision in Riley does not apply to border searches. And it failed to see why a traveler's privacy should be given greater weight than the interest in protecting territorial sovereignty, as the Fourth and Ninth Circuits have suggested. The Court suggested that doing so would "create special protection" for child pornography offenses. The Court also suggested that it was up to Congress to create additional protections beyond what the Fourth Amendment required, and judicial restraint was especially important in this context.
Alternatively, the Court concluded that there was reasonable suspicion based on three separate payments to an account associated with a Philippine phone number, which was associated with an email account containing an image of child pornography. Although those payments occurred over a year earlier, the Court joined other circuits rejecting staleness challenges in the child pornography context, where deleted filed can remain on electronic devices.
Judge Corrigan concurred, but declined to join the core holding because the government argued that no reasonable suspicion was required for the first time on appeal, and it was unnecessary to reach that issue given the existence of reasonable suspicion.
The Court saw "no reason why the Fourth Amendment would require suspicion for a forensic search of an electronic device when it imposes no such requirement for a search of other personal property." The Court refused to afford electronic devices "special treatment" just "because so many people now own them or because they can store vast quantities of records or effects," as border agents continued to bear the responsibility of preventing the importation of contraband regardless of advances in technology. Only highly intrusive border searches of a person's body required suspicion, and that reasoning did not apply to electronic devices. The Court acknowledged that the Fourth and Ninth Circuits have required reasonable suspicion for forensic searches of electronic devices at the border, but the Court was "unpersuaded" by them. The Court's recent decision in Vergara made clear that the Supreme Court's decision in Riley does not apply to border searches. And it failed to see why a traveler's privacy should be given greater weight than the interest in protecting territorial sovereignty, as the Fourth and Ninth Circuits have suggested. The Court suggested that doing so would "create special protection" for child pornography offenses. The Court also suggested that it was up to Congress to create additional protections beyond what the Fourth Amendment required, and judicial restraint was especially important in this context.
Alternatively, the Court concluded that there was reasonable suspicion based on three separate payments to an account associated with a Philippine phone number, which was associated with an email account containing an image of child pornography. Although those payments occurred over a year earlier, the Court joined other circuits rejecting staleness challenges in the child pornography context, where deleted filed can remain on electronic devices.
Judge Corrigan concurred, but declined to join the core holding because the government argued that no reasonable suspicion was required for the first time on appeal, and it was unnecessary to reach that issue given the existence of reasonable suspicion.
Mitrovic: Upholding Fraudulent Naturalization Conviction of Former Serbian Prison Guard
In United States v. Mitrovic, No. 16-16162 (May 23, 2018) (Corrigan (M.D. Fla.), William Pryor, Julie Carnes), the Court affirmed the defendant's conviction for unlawful procurement of naturalization.
At trial, the central dispute was whether the defendant served as a guard at a prison camp in Serbia where ethnic cleansing occurred in the 1990s, or whether he was instead forcibly conscripted into forced labor. On appeal, he argued that the district court violated his right to a complete defense under Chambers v. Mississippi by refusing to admit hearsay statements of recalcitrant witnesses. They were prisoners at the camp for a time period longer than defense witnesses who testified at trial, and they had initially stated that they had not seen him working as a guard, but later refused to be deposed because they were Muslims and did not want to be perceived as helping a Serb.
First, the Court ruled that application of the hearsay rules were neither arbitrary nor disproportionate, and did not violate the defendant's right to present a complete defense or infringe upon a weighty interest of the accused. Rather, it only prevented him from increasing the quantity of witnesses who would tell the jury what other witnesses had already said. The Court continued that, even if the correct application of the rules of evidence could violate Chambers, the hearsay statements here were different than the evidence in Chambers: they were merely helpful, not exculpatory; they were made 20 years after the events; they were not as compelling; and the declarants were not available for cross examination. Only one of the factors slightly weighed in the defendant's favor -- i.e., the statements were possibly made against a social interest, which was an exception to hearsay in several states. Thus, the Court concluded that Chambers was distinguishable.
Second, the Court rejected the defendant's argument that the district court erred by refusing to take judicial notice of the Geneva Convention to show that Bosnia would not have submitted documentation that it conscripted him into forced labor. The Court assumed without deciding that the Geneva Convention could be judicially noticed, but found that the district court did not err by concluding that its probative value was substantially outweighed by the possibility of confusing the jury under Rule 403. It was unclear whether the Geneva Convention applied, the jury would not know how to apply it, the defendant was still able to argue that he was conscripted into forced labor, and the Convention would not establish that a particular document was false.
At trial, the central dispute was whether the defendant served as a guard at a prison camp in Serbia where ethnic cleansing occurred in the 1990s, or whether he was instead forcibly conscripted into forced labor. On appeal, he argued that the district court violated his right to a complete defense under Chambers v. Mississippi by refusing to admit hearsay statements of recalcitrant witnesses. They were prisoners at the camp for a time period longer than defense witnesses who testified at trial, and they had initially stated that they had not seen him working as a guard, but later refused to be deposed because they were Muslims and did not want to be perceived as helping a Serb.
First, the Court ruled that application of the hearsay rules were neither arbitrary nor disproportionate, and did not violate the defendant's right to present a complete defense or infringe upon a weighty interest of the accused. Rather, it only prevented him from increasing the quantity of witnesses who would tell the jury what other witnesses had already said. The Court continued that, even if the correct application of the rules of evidence could violate Chambers, the hearsay statements here were different than the evidence in Chambers: they were merely helpful, not exculpatory; they were made 20 years after the events; they were not as compelling; and the declarants were not available for cross examination. Only one of the factors slightly weighed in the defendant's favor -- i.e., the statements were possibly made against a social interest, which was an exception to hearsay in several states. Thus, the Court concluded that Chambers was distinguishable.
Second, the Court rejected the defendant's argument that the district court erred by refusing to take judicial notice of the Geneva Convention to show that Bosnia would not have submitted documentation that it conscripted him into forced labor. The Court assumed without deciding that the Geneva Convention could be judicially noticed, but found that the district court did not err by concluding that its probative value was substantially outweighed by the possibility of confusing the jury under Rule 403. It was unclear whether the Geneva Convention applied, the jury would not know how to apply it, the defendant was still able to argue that he was conscripted into forced labor, and the Convention would not establish that a particular document was false.
Tuesday, May 15, 2018
Knowles: Erroneous Exclusion of Lay Identification Testimony Was Harmless
In United States v. Knowles, No. 16-16802 (May 15, 2018) (Jordan, Martin, Ginsburg), the Court concluded that the district court erred by excluding lay identification testimony, but it found the error harmless.
The district court had admitted under Rule 701 identification testimony from a government witness. The Court rejected the defendant's argument that the testimony should have been excluded under Rule 403 because the witness was a law enforcement official who participated in the vehicle stop uncovering the incriminating evidence. The official's familiarity with the defendant -- and thus the basis of his identification testimony -- was based in part on his observations of her during the traffic stop, and so it did not reveal any past or collateral contact by the defendant with the criminal justice system.
The Court, however, agreed with the defense that the district court erred by excluding defense identification testimony under Rule 701. The Court applied the "equal treatment" principle used in the context of expert witnesses to the context of lay witnesses. The defense witness was even more familiar with the defendant than the government's witness, and so he too should have been permitted to testify on the issue of identification. And Rule 403 would not have barred that testimony, even though he had also served as an expert witness for the defense. However, the Court concluded that the exclusion of his lay testimony was harmless, because the defense presented two former co-workers who provided identification testimony that would have rendered the excluded testimony cumulative.
The district court had admitted under Rule 701 identification testimony from a government witness. The Court rejected the defendant's argument that the testimony should have been excluded under Rule 403 because the witness was a law enforcement official who participated in the vehicle stop uncovering the incriminating evidence. The official's familiarity with the defendant -- and thus the basis of his identification testimony -- was based in part on his observations of her during the traffic stop, and so it did not reveal any past or collateral contact by the defendant with the criminal justice system.
The Court, however, agreed with the defense that the district court erred by excluding defense identification testimony under Rule 701. The Court applied the "equal treatment" principle used in the context of expert witnesses to the context of lay witnesses. The defense witness was even more familiar with the defendant than the government's witness, and so he too should have been permitted to testify on the issue of identification. And Rule 403 would not have barred that testimony, even though he had also served as an expert witness for the defense. However, the Court concluded that the exclusion of his lay testimony was harmless, because the defense presented two former co-workers who provided identification testimony that would have rendered the excluded testimony cumulative.
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