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Here is a recap of some recent victories from the Sixth Circuit. Good to see vigilant defense counsel using foresight to prevent undue restrictions resulting from sentencing conditions.

United States v. Arnold. Sixth Circuit: A jury convicted Appellant of being a felon in possession of a firearm. At sentencing, the district court departed upward, at least in part, because of its concern that a longer term of imprisonment was needed to ensure that Appellant received appropriate mental health treatment. Specifically, the district court found that Appellant’s “anger” warranted an upward departure to promote public safety, but also that Appellant so needed a “psychiatric intervention” that the Court felt compelled “to grant the government’s motion to go outside and above the sentencing guidelines” to ensure the Appellant would receive that treatment. The Sixth Circuit found that the district court abused its discretion.

United States v. Kelly. Sixth Circuit: Appellant violated his terms of supervised release by failing to register as a sex offender. As part of its Judgment, the district court imposed that district’s rote conditions of supervised release for sex offenders. But the Appellant’s last sex offense predated the revocation by 26 years. Moreover, the record demonstrated that Appellant had a low likelihood of recidivism (for sex offenses), had no mental disorder, had benefitted from previous therapy, and the age had lessened the risk of re-offending. Under such circumstances, the district court abused its discretion and the sentence was substantively unreasonable. The case further highlights the need for Counsel to be vigilant when Courts seek to impose “standard” conditions of supervised release.

United States v. Wilson. Sixth Circuit: A jury convicted Appellants of conspiracy to defraud the United States and providing false information to the Social Security Administration. Appellants sought to demonstrate their good faith reliance on the advice of their accountant, but the district court precluded that effort. Specifically, the district court found that Appellants had not sufficiently made an offer of proof sufficient for the defense to be presented to the jury. The Sixth Circuit, finding that the district court abused its discretion, found that an offer of proof unnecessary. Rather, Appellants needed only to inform the court of the substance of the evidence to be presented. As a second finding of error, the Sixth Court found that the district court failed to articulate its reasoning for a leadership enhancement, which required reversal.

Robert Dietrick represents criminal defendants in the federal Courts of Appeals.

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United States v. Pough, No. 15-1762 (3d Cir. Jan. 22, 2016) (unpublished)

This non-precedential Third Circuit decision reminds district courts that confessing that you were coerced into confessing something is not the same as confessing that you did what you confessed to doing.  Got that?  The facts may help.  Pough (who was already on federal supervised release) confessed to being a getaway driver in a murder-for-hire.  In a state court prosecution he moved to suppress the confession.  At the suppression hearing he testified about the contents of the confession; loosely, “yes, I confessed to being the getaway driver.”  The state court suppressed the confession as coerced and the state withdrew the charges.

Not one to let these things go, however, the federal government tried to revoke Pough’s supervised release.  The district court interpreted Pough’s testimony at the suppression hearing as an admission that he committed the conduct to which he had confessed, and found a violation.  The court took pains to note that it had “rel[ied] solely on” Pough’s testimony in support of suppression.  It probably did so in the hope of avoiding the thorny question of whether a coerced confession is admissible in a federal revocation proceeding – but in the process it earned a reversal.  Reviewing the transcript, the circuit held the district court’s interpretation clearly erroneous, noting the difference between admitting to having confessed to conduct and actually confessing to the conduct.

The remand may require the district court to confront the thorny question that it tried to avoid.

By:  Lisa A. Mathewson, www.mathewson-law.com

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Prosecutors often accuse defense attorneys, and our clients, of using unduly narrow interpretations of the law to justify conduct that hasn’t expressly been ruled illegal.  Who among us hasn’t heard the government invoke some variation of “the absence of an explicit prohibition doesn’t bar a prosecution”?  In other words, says the government, “it’s not okay just because no one told you it isn’t.”

The Third Circuit turned that argument around on the government recently, in United States v. Moreno, ___ F.3d ___, 2016 WL 53796 (3d Cir. Jan. 5, 2016).  A prosecutor in the Western District of Pennsylvania had a bright new idea:  use the defendant’s sentencing allocution as an opportunity to cross-examine him about the offense conduct – an opportunity that the prosecutor hadn’t gotten at trial, when the defendant chose not to testify.  The innovative prosecutor succeeded in eliciting incriminating admissions, upon which the sentencing judge promptly and expressly relied when imposing sentence.  Although the defendant had appropriately cabined his allocution to mitigation and remorse, defense counsel did not object to the cross-examination or the judge’s reliance upon it.

On appeal, the government sought refuge in the fact that neither a rule nor binding precedent explicitly says “no, prosecutors, you cannot cross-examine a defendant at allocution.”  The government relied on this “but no one said I couldn’t” analysis to argue both that no error had occurred, and that any error was not “plain” (as required for reversal, with no objection below). Continue reading →

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Bonifacio Toribio-Almonte was indicted on two counts: (1) conspiracy to import five kilos or more of cocaine and one or more kilos of heroin into the U.S., and (2) conspiracy to possess and distribute five kilos or more of cocaine and one or more kilos of heroin on board a vessel within U.S. customs waters.  On the morning his trial was set to begin, he pled guilty without a plea agreement.

Mr. Toribio-Almonte’s guideline range was 188-235 months in prison.  He requested a sentence below the guidelines, or at the very least, his minimum mandatory sentence, which was 120 months.  The Government requested a 235 month sentence.  To support its request for a sentence at the high end of the guideline range, the Government claimed Mr. Toribio-Almonte was a leader or organizer of the conspiracy.  The problem for the Government was that it had no evidence whatsoever to back up its claim.

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The Armed Career Criminal Act (ACCA) is one of the harshest federal gun laws. If a defendant has three or more violent felonies or serious drug crimes, the penalty for being a felon-in-possesion of a firearm goes from a maximum of ten years’ incarceration to a mandatory minimum of fifteen years and a maximum of life. Camden Barlow entered a guilty plea to being a felon-in-possesion knowing that the government believed that he was an Armed Career Criminal. After he pled, however, he sought at sentencing to first undo his plea by arguing that none of his prior convictions qualified him as a felon under 18 U.S.C. § 922(g). He alternatively argued that even if he were a felon-in-possesion, he did not have the requisite three prior convictions for violent felonies required by the ACCA. He lost in the district court on both arguments.

The two issues in the case were: (1) What is a felony? and (2) What is a violent felony?. As with many terms of art in federal sentencing, what seems like an easy question becomes complex when its answer requires delving into state sentencing procedures. For ease of application, federal sentencing law says that any crime, whether a state classifies it as a felony or a misdemeanor, is a federal felony if its maximum penalty is over one year in jail. Seems simple enough, but in practice it isn’t.

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When police officers can lie and about what they can lie is a recurring issue in criminal appeals. Courts have found that not telling the truth can be a useful tool in investigations, but is checked by the Constitution. For example, a detective can, while interrogating a suspect, lie about the evidence the police already have in their possession. Police can lie about the real reason for stopping a driver — they say it was for speeding, but in fact was because they believed the driver was a drug dealer. But, police cannot tell you they have a search warrant when, in fact, they do not have one.
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In the 2002 science fiction thriller Minority Report, Tom Cruise manipulated a futuristic computer interface by donning special gloves and waving his hands in the air to manipulate holographic screens of images and data. Using this sytem, he was able to see crimes before they were committed, so that the would-be perpetrators could be pre-emptively arrested and punished. This worked in the movie, because the computer interface was connected to a coven of clairvoyant psychics. And because it was just a movie. And because, well, he’s Tom Cruise. But do not try this if you are a federal district judge ruling on a Rule 29 motion in a drug-distribution conspiracy case, because you will only be waving your hands in the air. And that, luckily for Mr. Samuel Navarette-Aguilar, is not good enough.

Mr. Navarette was indicted on a number of drug charges, the aggregate effect of which was to subject him to a mandatory minimum 20-year sentence if, and only if, the jury found beyond a reasonable doubt that he conspired to distribute a kilogram or more of heroin. The pertinent evidence consisted of the testimony of Mr. Equihua-Ramirez, who obtained heroin from Mr. Navarette, and Mr. Burns, who bought heroin from Mr. Equihua-Ramirez. Faced with Mr. Navarette’s Rule 29 challenge to the sufficiency of the evidence to support the one-kilogram finding, the district judge engaged in a sort of evidentiary reverse-Tetris, trying to stack these witnesses’ vague and cryptic quantity and frequency references on top of one another such that they would reach the one-kilogram mark. It could not be done.

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Most cases before the Court of Appeals are there because the District Court accepted the arguments of one party or the other. The party that did not prevail noted an appeal and the two sides continue to advocate for their respective positions before the appeals court. There is, however, a narrow subsection of cases where the parties agreed as to what the correct ruling in a case should be, but the District Court nonetheless rules otherwise. We are then faced with the odd situation where the defense and the government are jointly asking the appellate court to reverse the judgment of the District Court. In these cases, the parties usually get what they wanted in the first place, but not before the Court of Appeals recruits an attorney to defend the District Court’s ruling.

This sequence of events played out in Lance Williams’s case. In 2008, Williams pleaded guilty to distributing crack and faced an enhanced mandatory minimum sentence of 240 months’ incarceration. Absent the government’s motion for that enhanced sentence, his advisory sentencing guidelines range would have been 130 to 162 months’ incarceration. Shortly before his sentencing, the government moved for a downward departure based on his substantial assistance to law enforcement. He therefore received a 180-month sentence on the government’s recommendation.

Three years later, Williams filed a pro se motion for sentence reduction under 18 U.S.C. § 3582(c)(2). In the motion, he argued that amendments to the sentencing guidelines, which were expressly retroactive, made him eligible for a sentence reduction. As the case progressed, the probation office, Williams’s newly appointed attorney, and the government all argued that Williams should receive a sentence reduction.

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If a defendant takes the stand during a pre-trial evidentiary hearing, or during a trial, and provides testimony that is materially false, it can form the basis for a two point sentencing guidelines enhancement for obstruction of justice. In 1993 the U.S. Supreme Court in U.S. v. Dunnigan, stated that when deciding whether to apply this enhancement, the court must use the federal perjury statute (18 U.S.C. 1621) as a guide. The trial court must review the evidence and make an independent finding that material testimony was not only false but also intentionally misleading.

In a December 9, 2015 opinion entitled U.S. v. Thompson, the Second Circuit granted the Defendant’s appeal and found that the district trial judge failed to make a finding of specific intent to obstruct justice by simply adopting the general conclusions of the pre sentencing report.

When the DEA executed an arrest warrant for Thompson, he allegedly consented to a search of his home. Later he was indicted for conspiracy to possess with the intent to distribute controlled substances. Thompson challenged the search of his home seeking to suppress the digital scales and cash recovered. During an evidentiary hearing Thompson testified that the DEA agents said that if he did not consent to searching his home, his sister and girlfriend would be arrested thereby improperly coercing his consent. Continue reading →

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Reversals of convictions because the government’s evidence at trial was not sufficient to sustain a conviction, despite a jury finding otherwise, are rarest of appellate victories. They are also the sweetest because the result is not a remand for a retrial, but a remand for the entry of a judgment of acquittal. Given this, it is surprising that there have recently been two such reversals this month. In the second of the two, a writeup of the first is coming soon, Daniel Blue, had his two convictions for possession with intent to distribute 100 grams or more of herion and conspiracy to commit the same vacated.

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