6/26/19: Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.

Another SCOTUS decision, another opinion by Justice Gorsuch, another win for the defense bar.

In United States v. Haymond, 588 U.S. --- (2019), Justice Gorsuch begins: "Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty. That promise stands as one of the Constitution’s most vital protections against arbitrary government."

This case, in the Apprendi line, involved supervised release violation sentencing under 18 U.S.C.  §3583(k).  Under that provision, if a judge finds by a preponderance of the evidence that a defendant on supervised release committed one of several enumerated offenses, including the possession of child pornography, the judge must impose an additional prison term of at least five years and up to life without regard to the length of the prison term authorized for the defendant’s initial crime of conviction.

The Court found this mandatory minimum sentence, based on judge-found facts, unconstitutional.  It remanded to the 10th Circuit to determine remedy: whether the mandatory minimum had to be excised or whether the district court could impanel a sentencing jury 

Here are some aspects of the opinion I found noteworthy:

• "At oral argument, the government even conceded that, under its theory, a defendant on supervised release would have no Sixth Amendment right to a jury trial when charged with an infraction carrying the death penalty. We continue to doubt whether even Apprendi’s fiercest critics 'would advocate' such an 'absurd result.'"  

• FN 7: "Just as we have no occasion to decide whether §3583(k) implicates Apprendi by raising the ceiling of permissible punishments beyond those authorized by the jury’s verdict, see n. 4, supra, we do not pass judgment one way or the other on §3583(e)’s consistency with Apprendi. Nor do we express a view on the mandatory revocation provision for certain drug and gun violations in §3583(g), which requires courts to impose 'a term of imprisonment' of unspecified length." [This FN is really important.  We should preserve constitutional challenges to mandatory imprisonment under section 3583(e)].

Finally, here is a really good passage to end on:

In the end, the dissent is left only to echo an age-old criticism: Jury trials are inconvenient for the government. Yet like much else in our Constitution, the jury system isn’t designed to promote efficiency but to protect liberty. In what now seems a prescient passage, Blackstone warned that the true threat to trial by jury would come less from “open attacks,” which “none will be so hardy as to make,” as from subtle “machinations, which may sap and undermine i[t] by introducing new and arbitrary methods.” 4 Blackstone 343. This Court has repeatedly sought to guard the historic role of the jury against such incursions. For “however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient) yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters.” 

6/21/19: SCOTUS Decisions on 922 (gun) crimes and a Batson case

The Supreme Court gives two wins to the defense bar today. 

The most impact will come from Rehaif v. United States, 588 U.S. --- (2019).  The Court held that for prosecutions under 18 U. S. C. §922(g) (gun crimes like felon in possession, etc.) the knowledge requirement extends to the defendant's prohibited status.  

In other words, in a felon in possession case for instance, the government will have to prove both that the defendant knowingly possessed the gun, and knew of his or her felony 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. "

This is a big change.  And as the dissent points out, it may entitle many people with prior 922 convictions to seek relief (though that is speculation at this point).  

In any event, this is a very good decision.  

In the other case, Flowers v. Mississippi, 588 U.S. --- (2019), the Supreme Court vacated a murder conviction based on a Batson violation.   Here are the salient points:

Four critical facts, taken together, require reversal. First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court. Tr. of Oral Arg. 32. Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors. Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors. Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State.  

We need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not “motivated in substantial part by discriminatory intent.” Foster v. Chatman, 578 U. S. ___, ___ (2016) (slip op., at 23) (internal quotation marks omitted). In reaching that conclusion, we break no new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case. 

6/13/19: A couple of very good Fourth Amendment decisions

The first case is a rare Fourth Amendment decision that arose in the immigration context. 

In Perez Cruz v. Barr, --- F.3d ---, No. 15-70530 (9th Cir. 2019), the Ninth Circuit ordered suppression and dismissal of the removal proceedings. 

Here is the intro to Judge Berzon's opinion:

Immigration and Customs Enforcement (ICE) agents implemented a preconceived plan to “target” over 200 factory workers for detention and for interrogation as to their immigration status. The plan turned on obtaining and executing a search warrant for employment records at the factory. The record before us establishes that the search warrant for documents was executed “in order to” arrest undocumented workers present at the factory. Our central question is whether the ICE agents were permitted to carry out preplanned mass detentions, interrogations, and arrests at the factory, without individualized reasonable suspicion. We hold that they were not.

This decision delves deeply into the applicability of Michigan v. Summers, 452 U.S. 692 (1981), which held that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.

The Court held that Summers did not apply in this context, because the search warrant was plainly a ruse:  "We hold that Summers’ categorical authority to detain incident to the execution of a search warrant does not extend to a preexisting plan whose central purpose is to detain, interrogate, and arrest a large number of individuals without individualized reasonable suspicion."

The Court further found that the evidence at issue -- admissions and a birth certificate -- were subject to suppression because they were not evidence of identity.  Rather, they were evidence of alienage.

Although this opinion is dense, it is worth a read.

A less dense, but equally worthy read is United States v. Moore-Bush, 18-30001 (D. Mass. 2019). In this case, the Court ordered suppression of pole-camera footage taken over a period of eight months without a warrant.

The Court relied heavily on Carpenter to find the defendants' had a reasonable expectation of privacy in their comings and goings from their home.

This is a must read and should prompt motions to suppress pole camera evidence.

6/12/19: Good case on double jeopardy in the mistrial context

In Gouveia v. Espinda, --- F.3d ---, No. 17-16892 (9th Cir. 2019), the Court affirmed the district court's grant of habeas relief. 

This is an interesting manslaughter case arising from state court in Hawaii.  The trial court granted a mistrial after the jury reached a verdict but before the verdict was announced, because jurors expressed concern for their safety due to a "scary-looking man" in the courtroom.   The verdict reached was not guilty.

The Ninth Circuit agreed with the district court that the state court erred in finding manifest necessity for a mistrial because the jurors all said the scary man did not impact their verdict.  Thus, there could be no retrial.

Procedurally, this case is very different because it was decided under 28 USC 2241, not 2254.  The opinion contains extended discussions of jurisdiction, deference, and the Rooker-Feldman doctrine (under which “a federal district court does not have subject matter jurisdiction to hear a direct appeal from the final judgment of a state court.”)

My favorite line in the decision comes from the Court's explanation for why the doctrine has no application to this case: "it is rare that we are asked to address an argument so transparently without merit."

6/11/19: Good case on factual basis requirement for guilty plea

In United States v. Bain, --- F.3d ---, No. 17-10107 (9th Cir. 2019), on plain error review, the Court vacated the defendant's armed bank robbery conviction under 18 U.S.C. § 2113(d).

The Court held that the factual basis for the plea was plainly insufficient. 

The central fact was that, during the robbery, the defendant "inadvertently placed a closed pocket knife on the bank’s counter while pulling a plastic bag out of his pocket."  The Court determined "this action did not 'put[] in jeopardy the life of any person by the use of a dangerous weapon,' which is a requirement for armed bank robbery under 18 U.S.C. § 2113(d)."

The Court also vacated the defendant's sentence.

6/10/19: SCOTUS case on burglary under the categorical approach

In Quarles v. United States, 587 U.S. --- (2019), the Court considered "whether remaining-in burglary (i) occurs only if a person has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure, or (ii) more broadly, occurs when a person forms the intent to commit a crime at any time while unlawfully remaining in a building or structure."  It adopted the second interpretation.

To sum up: The Armed Career Criminal Act does not define the term “burglary.” In Taylor, the Court explained that “Congress did not wish to specify an exact formulation that an offense must meet in order to count as ‘burglary’ for enhancement purposes.” Id., at 599. And the Court recognized that the definitions of burglary “vary” among the States. Id., at 598. The Taylor Court therefore interpreted the generic term “burglary” in §924(e) in light of: the ordinary understanding of burglary as of 1986; the States’ laws at that time; Congress’ recognition of the dangers of burglary; and Congress’ stated objective of imposing increased punishment on armed career criminals who had committed prior burglaries. Looking at those sources, the Taylor Court interpreted generic burglary under §924(e) to encompass remaining-in burglary. Looking at those same sources, we interpret remaining-in burglary under §924(e) to occur when the defendant forms the intent to commit a crime at any time while unlawfully present in a building or structure.

Justice Thomas concurs to urge the Court to reconsider Taylor and "end the unconstitutional judicial factfinding that occurs when applying the categorical approach." 

Finally, I note that "Quarles" is a great name for a case (yes, I know how to spell quarrel).

6/7/19: Interesting habeas on the voluntariness of a guilty plea

In United States v. Yong, --- F.3d ---, No. 17-16017 (9th Cir. 2019), the Court affirmed the district court’s denial of the petitioner's 28 U.S.C. § 2255 motion to vacate his guilty plea and set aside his misdemeanor conviction related to operating an unlawful sports betting operation.

The defendant raised two challenges to the voluntariness of his plea.  First, he said it was improperly conditioned on leniency for his son.  Second, he claimed the plea was tainted by government misconduct.

As to the first issue, the Court joined the other Circuits in holding: "the Government must have probable cause to prosecute a third party when it conditions leniency for that party in exchange for a defendant’s guilty plea. We note that these courts have used wording that focuses on whether probable cause was present at the time the threat was made or lenity offered. A prosecutor’s improper coercion actually takes effect, though, when a defendant pleads guilty as a result of the threat or offer of lenity. Therefore, a defendant may successfully challenge the voluntariness of his plea by showing that probable cause to prosecute the third party did not exist at the time the defendant pleaded guilty, even if the Government had probable cause to prosecute at an earlier time."

Further, "the Government must also have probable cause to prosecute the defendant being offered the plea in exchange for leniency for a third party, in addition to probable cause to prosecute the third party. In other words, a 'high standard of good faith' requires the Government to have probable cause both to prosecute the defendant and to prosecute the third party at the time the defendant enters the plea agreement in exchange for leniency for the third party."

The Court, however, found the government had probable cause as to both the petitioner and his son.  Thus, the plea was not involuntary on this ground.

As to the second issue, there was no question the government engaged in serious misconduct. It created a ruse to gain access to the petitioner's room and then failed to provide that information in seeking a search warrant.

The Court agreed that deliberate fabrications by law enforcement officers used to obtain search warrants could render a subsequent plea involuntary.    But this was so only if the defendant did not know of the misconduct at the time of the plea.   Here, the Court held: "Given Yong’s awareness of the Government’s misconduct and his decision to plead guilty nevertheless, we do not believe that the misconduct tainted his guilty plea or otherwise improperly induced it."

6/6/19: A gun case with an interesting Confrontation Clause issue & and an important decision on career offender Guidelines

First, in United States v. Benamor, --- F.3d ---, No. 17-50308 (9th Cir. 2019), the Court affirmed the defendant's conviction for being a felon in possession of a firearm under 18 USC 922(g)(1).

The firearm at issue was a shotgun manufactured around 1920.  The defendant argued he was entitled to an instruction on the antique firearms exception (that, to convict, the jury had to find that the defendant knew that his firearm was manufactured after 1898).

The Court disagreed.  Joining the other Circuits, it held a firearm’s antique status is an affirmative defense in a criminal prosecution.  And the defendant failed to meet his burden of production to put the “antique firearm” affirmative defense at issue.

More interesting is the Confrontation Clause issue.  An agent interviewed defendant’s landlord, who told him that she had seen defendant "with a very old or antique firearm."    At trial, the agent testified:

Q: Did your discussion with [the landlord] confirm your decision to arrest Mr. Benamor for the firearm and ammunition?

A: Yes, it did.

The Court held, "[i]n context, that answer implied that the landlord confirmed that Defendant possessed the shotgun and the ammunition."  This was a clear Confrontation Clause violation: "If the government’s argument prevailed here, then “every time a person says to the police 'X committed the crime,' the statement (including all corroborating details) would be admissible to show why the police investigated X. That would eviscerate the constitutional right to confront and cross-examine one’s accusers."

The Court, however, found the error harmless.

Moving to the Sixth Circuit, in United States v. Havis, --- F.3d ---, No. 17-5772 (6th Cir. 2019), the en banc court considered "whether the definition of 'controlled substance offense' in § 4B1.2(b) includes attempt crimes."  Although the Guideline's commentary says it does, the Guideline itself makes no mention to attempt crimes (or conspiracy).

The Court found the Commission could not add attempt crimes in the commentary:

"The guideline expressly names the crimes that qualify as controlled substance offenses under § 2K2.1(a)(4); none are attempt crimes. And the Commission knows how to include attempt crimes when it wants to—in subsection (a) of the same guideline, for example, the Commission defines “crime of violence” as including offenses that have “as an element the use, attempted use, or threatened use of physical force against the person of another.” USSG § 4B1.2(a) (emphasis added). 

To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in the guideline itself—no term in § 4B1.2(b) would bear that construction.4 Rather, the Commission used Application Note 1 to add an offense not listed in the guideline. But application notes are to be “interpretations of, not additions to, the Guidelines themselves.” Rollins, 836 F.3d at 742. If that were not so, the institutional constraints that make the Guidelines constitutional in the first place—congressional review and notice and comment— would lose their meaning.  The Commission’s use of commentary to add attempt crimes to the definition of “controlled substance offense” deserves no deference. The text of § 4B1.2(b) controls, and it makes clear that attempt crimes do not qualify as controlled substance offenses.

6/5/19: "David Derek Brown, who is a black man, had the misfortune of deciding to avoid contact with the police."

In United States v. Brown, --- F.3d ---, No. 17-30191 (9th Cir. 2019), the Court reversed the district court's denial of the defendant's motion to suppress.

Here is the Opinion's intro:

David Derek Brown, who is a black man, had the misfortune of deciding to avoid contact with the police. Following an anonymous tip that a black man was carrying a gun—which is not a criminal offense in Washington State—police spotted Brown, who was on foot, activated their lights, and pursued him by car, going the wrong direction down a one-way street. Before flashing their lights, the officers did not order or otherwise signal Brown to stop. Brown reacted by running for about a block before the officers stopped him at gunpoint. 

With no reliable tip, no reported criminal activity, no threat of harm, no suggestion that the area was known for high crime or narcotics, no command to stop, and no requirement to even speak with the police, we are left with little more than Brown’s flight from the officers, which is not enough under the circumstances. In today’s world, Justice Stevens’ observations some twenty years ago are particularly prescient: 

     Among some citizens, particularly minorities and those residing in high crime areas,         there is also the possibility that the fleeing person is entirely innocent, but, with or           without justification, believes that contact with the police can itself be dangerous,             apart from any criminal activity associated with the officer’s sudden presence. Illinois       v. Wardlow, 528 U.S. 119, 132 (2000) (Stevens, J., concurring in part and dissenting         in part). 

Without more specific, articulable facts supporting their actions, we conclude that the officers lacked the requisite reasonable suspicion that criminal activity was afoot before stopping Brown. Accordingly, we reverse the district court’s order denying Brown’s motion to suppress. 

The Court also notes:

• "In evaluating flight as a basis for reasonable suspicion, we cannot totally discount the issue of race."  

• "Given that racial dynamics in our society—along with a simple desire not to interact with police—offer an “innocent” explanation of flight, when every other fact posited by the government weighs so weakly in support of reasonable suspicion, we are particularly hesitant to allow flight to carry the day in authorizing a stop."