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New from the District of Vermont; News from the Sentencing Commission; Supreme Court & Second Circuit update
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The Defense Post
Spring 2015
   This issue of The Defense Post contains news that we hope will be interesting to you and useful in your practice.  Thus, you will find news about developments in this district as well as a discussion of some of the proposed amendments to the Sentencing Guidelines that will take effect on November 1, 2015.  You will also find a review of recent Supreme Court and Second Circuit cases as well as a preview of some of the cases the Supreme Court will hear this term.

Michael L. Desautels
Federal Public Defender—District of Vermont

 
Old Courthouse, St. Louis, Missouri

News from the District of Vermont

   At two recent brown bag meetings held by the office, Judge Geoffrey Crawford provided information about the Rutland Federal Drug Court program.  Unlike the existing reentry program in Burlington, the Rutland Federal Drug Court program operates prior to conviction and sentencing.  The Court’s announcement is available here.
   Practitioners are also reminded that the District of Vermont has adopted best practices for dealing with cases involving cooperation.  The Office welcomes comments on individuals’ experiences with the practical application of the best practices.

News from the Sentencing Commission

   While the Sentencing Commission’s proposed amendments for 2015 are relatively minor, practitioners with fraud cases will want to review the changes to § 2B2.1 of the Sentencing Guidelines to determine how the proposed amendments may affect individual clients.  Also notable is the increase in the hydrocodone marijuana equivalency (from 1g=500g to 1g=6.7kg) as well as the change to the single sentence rule in § 4A1.2 of the Sentencing Guidelines.  The proposed amendments are available here and a summary of the proposals is available here.

Supreme Court review and preview

   The Supreme Court has decided several cases this term that are of note to practitioners.
Fourth Amendment (prolonged traffic stop)
   Most recently, in Rodriguez v. United States, --- U.S. ---, 2015 WL 1780927  (April 21, 2015), the Supreme Court held that law enforcement’s authority to detain an individual during a traffic stop extends only to the length of time necessary to address the traffic violation.  In Rodriguez, an officer stopped the defendant for a traffic violation and issued a warning.  Id. at *3.  Once the warning ticket was issued, the officer detained the defendant for an additional seven to eight minutes so that a dog sniff could be conducted with a second officer present.  Id. at *3-4.  The Eighth Circuit upheld the continued detention because “dog sniffs that occur within a short time following the completion of a traffic stop are not constitutionally prohibited if they constitute only de minimis intrusions.”  Id. (quotations omitted). 
   The Supreme Court rejected the Eighth Circuit’s de minimis intrusion rule and held instead that “a routine traffic stop is more analogous to a so-called Terry stop . . . than to a formal arrest.” Id. at 5 (citations, internal quotations omitted).  Like a Terry stop, such a detention can last no longer than necessary “to address the traffic violation that warranted the stop.”  Id.
Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's “mission”—to address the traffic violation that warranted the stop.  Because addressing the infraction is the purpose of the stop, it may “last no longer than is necessary to effectuate th[at] purpose.”  Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.
Id. (citations omitted).  In its analysis, the Court rejected the government’s claim that an officer can prolong a stop to conduct a dog sniff so long as the officer is otherwise reasonably diligent in pursuing the traffic-related purpose of the stop.  In so doing, the Court made it clear that a prolonged stop is unlawful even if the sniff (and associated delay) occurs before the traffic-related part of the stop is completed.
The Government's argument, in effect, is that by completing all traffic-related tasks expeditiously, an officer can earn bonus time to pursue an unrelated criminal investigation.  The reasonableness of a seizure, however, depends on what the police in fact do.  In this regard, the Government acknowledges that “an officer always has to be reasonably diligent.”  How could diligence be gauged other than by noting what the officer actually did and how he did it?  If an officer can complete traffic-based inquiries expeditiously, then that is the amount of “time reasonably required to complete [the stop's] mission.”  As we said in Caballes and reiterate today, a traffic stop “prolonged beyond” that point is “unlawful.”  The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, as Justice ALITO supposes, but whether conducting the sniff “prolongs”— i.e., adds time to—“the stop.”
Id. at 5.
Reasonable suspicion based on reasonable mistake of law or fact
   In an 8-1 decision, the Supreme Court concluded that the reasonable suspicion required for a traffic stop can rest on a reasonable mistake of law.  Heien v. North Carolina, 135 S.Ct. 530 (2014).  The Court explained that it had little trouble reaching this result given that “the ultimate touchstone of the Fourth Amendment is reasonableness,” id. at 536 (quotations omitted), and given that its holdings for more than two centuries embraced this principle.  Thus, Chief Justice Roberts’ opinion looked to a line of customs cases in which courts “indemnif[ied] customs officers against damages suits premised on unlawful seizures. . . . on a showing that the officer had ‘reasonable cause’—a synonym for ‘probable cause’—for the challenged seizure.”  Id. at 537 (citations omitted).  In this line of cases, as well as the more recent decision in Michigan v. DeFillippo, 443 U.S. 31 (1979), the Supreme Court concluded that probable cause could exist even where a reasonable mistake of law is made.  Still, the Court sought to cabin the range of mistakes that would be tolerated and explained that:
The Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable.  We do not examine the subjective understanding of the particular officer involved.  And the inquiry is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation.  Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.

Id. at 539.  Given the wording of the statute and the lack of an authoritative opinion from the North Carolina courts, the Supreme Court had no trouble concluding the mistake of law was an objectively reasonable one.  Id. at 540.

Physical intrusion to gather information is a search
 

   In Grady v. North Carolina, 135 S.Ct. 1368 (2015) (per curiam), the Supreme Court reiterated its holding in United States v. Jones, 132 S.Ct. 945 (2012), that a physical intrusion in order to gather information is a search for purposes of the Fourth Amendment.  The Court applied the holding to a North Carolina civil proceeding in which the government had obtained an order subjecting a recidivist sex offender to satellite-based location monitoring.  Grady, 135 S.Ct. at 1369.  The Court rejected any attempt to distinguish the state proceeding as civil rather than criminal:  “The State's program is plainly designed to obtain information.  And since it does so by physically intruding on a subject's body, it effects a Fourth Amendment search.”  Id. at 1371.

Supreme Court Preview
(ACCA, Confrontation Clause, First Amendment)

   The Court has several important cases that are yet to be decided, including Johnson v. United States and Ohio v. Clark.  The Supreme Court has now heard argument twice in Johnson v. United States, a case that deals with the scope of the ACCA’s residual clause.  The defendant in Johnson received a 15-year mandatory minimum sentence because his state conviction for possession of a sawed off shotgun was determined to be a violent felony under the so-called residual clause in 18 U.S.C. § 924(e)(2)(B)(ii).  United States v. Johnson, 526 Fed.Appx. 708 (8th Cir. 2013); United States v. Lillard, 685 F.3d 773, 777 (8th Cir. 2012) (“Possession of a short shotgun presents a serious potential risk of physical injury to another because it is roughly similar to the listed offenses within the ACCA, both in kind as well as the degree of risk for harm posed. Lillard's possession of a short shotgun is a violent felony.”).  Following oral argument in November, the Supreme Court ordered further briefing on whether the residual clause is unconstitutionally vague. 
   In Ohio v. Clark, the Supreme Court has before it the question of whether a student’s statements to a teacher who is a mandatory reporter are testimonial for purposes of the Confrontation Clause.  The Ohio Supreme Court determined that such statements are testimonial because the teacher is an agent of law enforcement for purposes of the Confrontation Clause.  State v. Clark, 999 N.E.2d 592, 601 (Ohio 2013) (“Statements elicited from a child by a teacher in the absence of an ongoing emergency and for the primary purpose of gathering information of past criminal conduct and identifying the alleged perpetrator of suspected child abuse are testimonial in nature.”).  Several other state supreme courts have reached contrary conclusions. 
   Also still to be decided is Elonis v. United States, which presents a First Amendment question involving whether proof of a defendant’s subjective intent is required to prove a true threat.  Elonis was discussed in the Fall 2014 issue of The Defense Post.


Second Circuit review

   The Second Circuit has issued a number of opinions in recent months that are worthy of discussion or note.
Fourth Amendment (staleness and child pornography cases)
   In United States v. Raymonda, 780 F.3d 105 (2d Cir. 2015), the Second Circuit considered when a single incident of viewing child pornography can serve as the basis for a search warrant.  In Raymonda, the alleged viewing occurred nine months before the search warrant was issued and consisted, apparently, of no more than accessing the web page on which the thumbnail images were found.  Id. at 110.  The district court granted the defendant’s motion to suppress and the government appealed.  While the Second Circuit agreed that no probable cause existed, it provided guidance for when a court may assume that a suspect is likely to continue to possess child pornography even when a significant amount of time has passed.  Id. at 114-115. 
   The Raymonda Court made it clear that this assumption—that child pornography cases are unique because child pornography suspects are likely to hoard images—is only applicable where there is a “preliminary finding that the suspect is a person ‘interested in’ images of child pornography.  The ‘alleged proclivities of collectors of child pornography,’ that is, ‘are only relevant if there is probable cause to believe that [a given suspect] is such a collector.’”  Id. at 114 (citation omitted).  Such an inference may arise, for example, where a suspect has paid for child pornography or has “an extended history of possessing or receiving pornographic images.”  Id.  All three judges agreed that the single instance of accessing child pornography did not give rise to probable cause absent additional information tending to confirm that the inference was applicable.  However, the majority concluded that the good faith exception applied and therefore reversed the district court’s order suppressing the evidence.  Judge Chin dissented from the conclusion that the good faith exception applied.
Discovery of narcotics detection dog field performance records
 
   In United States v. Foreste, 780 F.3d 518 (2d Cir. 2015), the defendant entered a conditional guilty plea after the district court denied his motion to suppress.  Most notable was the Second Circuit’s decision concerning the scope of discovery available regarding a narcotics detection dog’s reliability.  The district court concluded that the dog’s field performance records were not relevant and need not be produced by the government.  Id. at 527.  The Second Circuit disagreed and explained that while the Supreme Court—in Florida v. Harris, 133 S.Ct. 1050 (2013)—had rejected a rule requiring production of field performance records, the High Court had not held that such records are irrelevant:
Harris counsels caution, but it does not dictate an about-face from this Court's long-standing position that a canine's field performance is relevant to the probable cause inquiry.  The district court's decision to deny Foreste's request for the narcotics canine's field performance records on the ground that they were “not controlled instances” and thus “do[n't] tell you anything” was based on an erroneous view of the law and constituted an abuse of the court's discretion.

780 F.3d at 529 (citation omitted).

Statutory rape is not a crime of violence

   In United States v. Mead, 773 F.3d 429, 437 (2d Cir. 2014), the Second Circuit held that New York’s statutory rape provision—N.Y. Penal Law § 130.40-2—was not categorically a crime of violence.  The court’s decision in Mead all but overrules its prior decision in United States v. Daye, 571 F.3d 225 (2d Cir. 2009), which held that an older version of Vermont's 13 V.S.A. § 3252(c) was a crime of violence.  Mead’s rationale also strongly suggests that the current version of 13 V.S.A. § 3252 is not a crime of violence.
   Central to an understanding of the two cases is the Mead Court’s conclusion that the New York statute focused on offenses against 15- and 16-year olds.

[U]nlike the Vermont law in Daye, N.Y.P.L. § 130.40–2's focus is not on all children from infancy to age fifteen, but principally on those minors who are fifteen and (pertinently) sixteen years old. . . .

773 F.3d at 434.  Although the New York statute applies on its face to victim’s 17-years old and younger, the Court concluded that section 130.40-2’s true focus was on 15 and 16 year olds because there were other, related New York provisions that provided more serious penalties for offenses committed against younger victims.  Id. at 434-435.

Thus, while offenders who engage in sexual contact with children and with young teens may also be charged pursuant to § 130.40–2, this provision, in the context of the larger statutory scheme, focuses on fifteen- and sixteen-year-old minors, as sexual conduct involving younger victims can be charged as one of the higher-graded offenses.

Id. at 434.  According to the Mead Court, identifying the true focus of the provision is crucial because decisions from the other circuits have looked to the age of the protected minors when determining whether the offense is a crime of violence:

Accordingly, courts deciding whether violation of a statutory rape law is “categorically” violent have often looked, inter alia, to the age of the protected minors to assess the typical character of the prohibited conduct, reasoning that laws penalizing sexual contact with young children will in the “ordinary” case present a risk of injury, whereas laws criminalizing such conduct with older, more mature minors may not.

Id. at 435 (citations omitted).  Having identified the true focus of the New York provision, the Mead Court contrasted New York’s section 130.40-2 with the now-amended 13 V.S.A. § 3252(3) and explained that it was the focus on older teens that

[S]ufficiently distinguishes the statute at bar, N.Y.P.L. § 130.40–2, from the broader Vermont law in Daye that we are unable to conclude that violation of the New York law would, in the “ordinary” case, pose a “serious potential risk of physical injury to another” and require “purposeful, violent, and aggressive” conduct.  The Vermont law in Daye criminalized sexual contact with any minor aged fifteen or younger, see 13 Vt. Stat. Ann. § 3252(3) (1986), and constituted Vermont's primary prohibition on sexual contact with children.  The focus of § 130.40–2, by contrast, is not the universe of all children potentially victimized by adults, but fifteen- or sixteen-year-olds, specifically.  In addition, N.Y.P.L. § 130.40–2 is structured as the least serious in a series of separate, escalating crimes penalizing sexual contact with minors.

Id. at 436.  The results in Daye and Mead make sense, if one accepts Daye's conclusion that the focus of the now-amended section 3252(3) was on “sexual act[s] inflicted upon a child by an adult.”  571 F.3d at 232.  However, changes to section 3252 and related provisions mean that the current 13 V.S.A. § 3252(c)’s focus—much like the New York provision considered in Mead—is no longer on sexual acts inflicted upon a child by an adult; consequently, there is a strong argument that the current 13 V.S.A. § 3252(c) is not a crime of violence.

Youthful offender adjudication is not a predicate for ACCA purposes
 

   Because of the number of defendants with New York convictions, the Second Circuit’s decision in United States v. Sellers, --- F.3d ---, 2015 WL 1881342 (2d Cir.), is noteworthy.  In Sellers, the Second Circuit held that “a drug conviction under New York law that was replaced by a [Youthful Offender] adjudication is not a qualifying predicate conviction under the ACCA because it has been ‘set aside’ within the meaning of 18 U.S.C. § 921(a)(20) and New York law.”  Id. at *1.  The Second Circuit explained that it reached this decision:

[B]ecause (1) § 921(a)(20) specifically requires the district court to apply state law in making that determination and (2) New York law deems such YO adjudications to ‘set aside’ convictions and does not consider YO adjudications predicate convictions for sentencing enhancements in New York State courts.

Id. at *5.  Importantly, the Second Circuit distinguished the treatment of Youthful Offender adjudications for purposes of ACCA from other contexts and reaffirmed its prior decisions which allowed such Youthful Offender adjudications to count for various Sentencing Guideline purposes, such as designation as a Career Offender.  Id. at *6-7.

Plain error review
 

   Also notable is United States v. Sanchez, 773 F.3d 389 (2d Cir. 2014), where the Second Circuit made it clear that miscalculating the applicable mandatory minimum can be plain error even if the defendant is sentenced above the erroneously calculated mandatory minimum.  In Sanchez, the district court and parties all mistakenly assumed that the defendant’s prior state conviction subjected him to a 20-year mandatory minimum under 18 U.S.C. §§ 841(b)(1)(A) and 851.  While the parties agreed that this assumption was error and that the error was clear or obvious, the parties disagreed as to whether the defendant’s substantial rights were affected and whether the error seriously affected the fairness, integrity or public reputation of judicial proceedings.  By contrast with its prior decision in United States v. Deandrade, 600 F.3d 115 (2d Cir. 2010), the Sanchez Court concluded that the defendant’s substantial rights had been affected because “the assumption of a 20–year minimum sentence permeates the record” and, consequently, “the error in calculating the mandatory minimum did affect Sanchez's sentence.”  773 F.3d at 392, 393.  Because he might have received a lower sentence had no mistake been made, “the fairness and integrity of judicial proceedings were seriously affected by the District Court's error.”  Id. at 393-394.

Authentication of evidence & late-produced discovery
 

   Given the prevalence of social media and the last-minute disclosure of discovery, the Second Circuit’s decision in United States v. Zhyltsou, 769 F.3d 125 (2d Cir. 2014), merits mention.  The Zhyltsou Court reversed a jury verdict because it concluded the district court admitted the defendant’s social media page without proper authentication under Federal Rule of Evidence 901.  Id. at 127.  While the thrust of the opinion deals with this evidentiary error, the opinion is also important because the Second Circuit strongly suggests that the government’s late disclosure of the evidence would itself have provided adequate grounds for vacating the conviction.  Id. at 128 n.2.

Mootness
 

   Finally, the Second Circuit’s decisions in United States v. Wiltshire, 772 F.3d 976 (2d Cir. 2014), and United States v. Kleiner, 765 F.3d 155 (2d Cir. 2014), remind practitioners that an appeal is not necessarily moot merely because a defendant has completed his or her sentence “because a favorable appellate decision might prompt the district court to reduce [the defendant’s] . . . term of supervised release.”  Kleiner, 765 F.3d at 157 n. 1.
 

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