In this edition of The Defense Post, we bring you news from the district courts and a review of recent Supreme Court and Second Circuit decisions. You will also find a preview of some Supreme Court cases that will be heard during the 2018 term as well as proposed amendments to the Sentencing Guidelines that will take effect on November 1, 2018.
Michael L. Desautels
Federal Public Defender—District of Vermont
Barclay T. Johnson
News from the District of Vermont
Trial in United States v. Fell is scheduled for this fall. Still pending with the Second Circuit is the government’s appeal of Judge Crawford’s order excluding statements of Robert Lee from the penalty phase of the trial.
State and federal courts across the country, including in the District of Vermont, are addressing whether the National Center for Missing and Exploited Children (NCMEC) is a government entity or acts as a government agent when it examines files sent to it by an electronic service provider. See generally, United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016). These cases raise important Fourth Amendment issues, including claims regarding the third-party doctrine, a question addressed by the Supreme Court this term in Carpenter v. United States, --- S.Ct. ---, 2018 WL 3073916. Please contact the Office of the Federal Public Defender if you have such a case.
In broader district court news, practitioners should note that the issue developed in United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012), and litigated throughout the country, is presently on appeal in the Second Circuit. See, e.g., United States v. Boutin (no. 18-194) (2d Cir.). In brief, Trujillo explains that the existence of an ICE detainer is irrelevant to the release vs. detention decision to be made under the Bail Reform Act. Once released, the government—via the Department of Homeland Security—may not continue to hold the defendant in immigration custody for purposes of detaining the individual for the criminal case. Finally, dismissal of the indictment is an appropriate remedy for failure to abide by a district court’s release order in these circumstances. United States v. Boutin, 269 F.Supp.3d 24, 26 (SDNY 2017) (“once a criminal prosecution is initiated and the Government has invoked the jurisdiction of the federal district court, the Bail Reform Act is controlling. When an Article III court has ordered a defendant released, the retention of a defendant in ICE custody contravenes a determination made pursuant to the Bail Reform Act. As such, the Government’s criminal prosecution cannot proceed and must be dismissed with prejudice.”). Within the Second Circuit, at least four decisions have dismissed indictments in these circumstances (list here).
Supreme Court Review
Fourth Amendment Decisions
Carpenter v. United States—warrant required for detailed location information
, the Supreme Court held that a warrant is typically required for the government to obtain time-stamped cell-site location information (CSLI) that has previously been obtained using a subpoena. In an opinion by Chief Justice Roberts, the Court addressed several frequently encountered Fourth Amendment doctrines and made it clear that the Fourth Amendment will, in the face of new technologies, evolve “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Id
. at *5 (citations omitted). When considering the aggregation of location information maintained by cell service providers, the Court made it clear that United States v. Jones
, 565 U.S. 400 (2012), controlled. In Jones
, a majority of the Court had already concluded that individuals have an expectation of privacy in their physical movements. Given this, the majority explained that it was society’s expectation “that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual's car for a very long period.” Carpenter
, 2018 WL 3073916 at *9. Accordingly,
Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter's wireless carriers was the product of a search.
Id. Carpenter suggests that subpoenas used to collect other detailed information about an individual, such as IP address logs, are protected and are subject to challenge. Of the four dissenting opinions, Justice Gorsuch’s opinion is the most interesting. Justice Gorsuch agreed that the third-party doctrine did not and could not apply, and would conclude the doctrine was ill considered to begin with. Id. at 67 (“I do not agree with the Court's decision today to keep Smith and Miller on life support and supplement them with a new and multilayered inquiry that seems to be only Katz-squared.”). He would instead focus on whether an individual has a property interest in the item in question. His (and the other dissenters’) focus on property rights is a reminder and caution that counsel raising Fourth Amendment claims should consider arguing that a search occurred both within the expectation of privacy framework and within a property rights framework. Additional coverage of Carpenter can be found at SCOTUSblog.
Dahda v. United States—narrow wiretap ruling
In Dahda v. United States
, 138 S.Ct. 1491 (2018), the Court issued a narrow ruling dealing with wiretap orders issued pursuant to 18 U.S.C. § 2510 et seq
. At issue were orders that impermissibly authorized wiretaps outside the District of Kansas, where the orders had been issued. Section 2518(10)(a) provides a statutory suppression remedy where the wiretap order is subject to certain defects, including under subsection (ii) if the order is “insufficient on its face.” Id
. at 1494. The defendant’s claim in Dahda
was that the evidence obtained should be suppressed because the language in the order that purported to authorize wiretaps outside the District of Kansas made the order “insufficient on its face” within the meaning of § 2518(10)(a)(ii). Id
. The Supreme Court concluded that while the judge lacked jurisdiction to issue such orders, the sentence that purported to authorize such out-of-district wiretaps did not render an order “insufficient on its face” within the meaning of § 2518(10)(a)(ii). Id
. at 1498.
Byrd v. United States—individuals in lawful possession of a vehicle have standing to challenge a search
In Byrd v. United States
, 138 S.Ct. 1518 (2018), a unanimous Supreme Court concluded that an individual who was in lawful possession of a rental vehicle had an expectation of privacy in it even if not listed on the rental agreement. The Second Circuit’s decision addressing this issue, United States v. Lyle
, 856 F.3d 191 (2d Cir. 2017), was vacated and the case remanded for further consideration in light of Byrd
. Lyle v. United States
, 2018 WL 2292447 (U.S. 2018).
Collins v. Virginia—presence of a vehicle in the curtilage will not end Fourth Amendment protections of the curtilage
Collins v. Virginia
, 138 S.Ct. 1663 (2018), considered the intersection of the automobile exception and the boundary of a home’s curtilage. Police investigating a motorcyclist who eluded them while speeding saw what they believed to be the motorcycle under a tarp in the driveway of a home. Officers removed the tarp, confirmed that it was the same motorcycle, and arrested its owner. The Court rejected the idea that the search was covered by the automobile exception, which “extends no further than the automobile itself.” Id
. at 1667. Instead, this part of the driveway was within the home’s curtilage and enjoyed the same protection as the home itself. Officer’s actions violated the Fourth Amendment.
D.C. v. Wesby—an officer’s subjective intent may be fair game (someday)
In District of Columbia v. Wesby
, 138 S.Ct. 577 (2018), a unanimous Court concluded that police had probable cause to arrest partygoers attending a party at a vacant house. Notable in Wesby
, is Justice Ginsburg’s suggestion that an officers subjective state of mind is relevant to the Fourth Amendment inquiry. Id
. at 594.
Currier v. Virginia—voluntary severance of charges precludes double jeopardy claim
In Currier v. Virginia
, --- S.Ct. ---- 2018 WL 3073763, the Supreme Court concluded that double jeopardy and issue preclusion principles did not apply when a defendant consents to severance of charges. Currier
involved a not unfamiliar scenario in which a defendant is charged with being a felon in possession of a firearm as well as some other offense and the charges are severed to avoid the prejudice of having evidence of prior convictions introduced at trial. Currier
was a state case in which the defendant was charged with a firearm offense as well as burglary and larceny offenses arising out of the theft of the firearms he was accused of possessing. Virginia law presumes that such charges will be severed and they were. At trial on the burglary and larceny offenses, the defendant was acquitted. The defendant then raised a double jeopardy objection to trial on the firearm charge and argued that, at a minimum, issue preclusion prevented relitigation of facts established at the first trial. The Supreme Court upheld the Virginia Supreme Court’s decision rejecting these claims and in so doing cut back on Ashe v. Swenson
, 397 U.S. 436 (1970). Justice Kennedy did not supply a fifth vote for that section of the opinion that would have all but overruled Ashe
. Additional coverage via SCOTUSblog can be found here
Continuing Saga of the Residual Clause
Dimaya v. Sessions—similar residual clause in 18 U.S.C. § 16(b) is unconstitutionally vague
In Dimaya v. Sessions
, 138 S. Ct. 1204 (2018), the Supreme Court concluded that the residual clause in 18 U.S.C. § 16(b) was unconstitutionally vague. Section 16 supplies a definition of “aggravated felonies” in the immigration setting and its residual clause is very similar to the language in the Armed Career Criminal Act (ACCA) that was struck down in Johnson v. United States
, 135 S. Ct. 2551 (2015). The Dimaya
Court had little difficulty in concluding that the provision suffered from the same problems that led the Court to conclude the residual clause in the ACCA was unconstitutionally vague in Johnson
. Given the decision in Dimaya
, it is likely that the identical residual clause in 18 U.S.C. § 924(c) is unconstitutionally vague as well. In light of Dimaya
, the Second Circuit issued an amended opinion in United States v. Hill
, 890 F.3d 51 (2d Cir. 2018) (concluding that Hobbs Act robbery, not conspiracy, was a violent felony under the force clause), that dropped its conclusion that § 924(c)’s residual clause is not void for vagueness.
Rosales-Mireles v. United States & Hughes v. United States—Sentencing Guidelines are Still the Lodestone of Sentencing
In two opinions, the Court reiterated the fact that the Sentencing Guidelines continue to play a central role in an individual’s sentencing hearing. While courts are no longer bound by the Guidelines, “even in an advisory capacity the Guidelines serve as ‘a meaningful benchmark’ in the initial determination of a sentence and ‘through the process of appellate review.’” Rosales-Mireles v. United States
, 138 S.Ct. 1897, 1904 (2018) (quoting Peugh v. United States
, 569 U.S. 530, 541 (2013)). In Rosales-Mireles
, the Court concluded that an unpreserved Guidelines calculation error will normally satisfy the standard for plain error on appeal. This is so because such an error “usually establishes a reasonable probability that a defendant will serve a prison sentence that is more than ‘necessary’ to fulfill the purposes of incarceration.” Id
. at 1907.
In Hughes v. United States
, 138 S.Ct. 1765 (2018), the Court resolved questions left open by its prior plurality opinion in Freeman v. United States
, 564 U.S. 522 (2011), a case that concluded that individuals with Rule 11(c)(1)(C) pleas could be eligible for retroactive reductions in their sentences under 18 U.S.C. § 3582(c)(2). In Freeman
, however, no single position commanded a majority of the Court, which left uncertainty about which individuals with Rule 11(c)(1)(C) pleas were eligible for such reductions. In Hughes
, the Court clarified that even when an 11(c)(1)(C) plea is involved, the sentence is contingent on the sentencing court’s acceptance of the agreement, which is itself typically based on the Guideline analysis that accompanies every sentence. Thus, “in the usual case the court's acceptance of a Type–C agreement and the sentence to be imposed pursuant to that agreement are ‘based on’ the defendant's Guidelines range” for purposes of § 3582(c)(2). Id
. at 1776.
Sixth Amendment, Prejudice Standard for Ineffective Assistance, and Guilty Pleas
Also important were the following. In McCoy v. Lousiana
, 138 S.Ct. 1500 (2018), the Court determined that a defendant has a Sixth Amendment right to decide on the objective of the defense, including the right to not admit guilt in the guilt phase of a capital murder trial. Lee v. United States
, 137 S.Ct. 1958 (2017), involved the requisite prejudice showing for an individual raising an ineffective assistance of counsel claim based on incorrect advice about the immigration consequences of a conviction. The Lee
Court concluded that a defendant can show prejudice if he can show there is a reasonable probability that he would have gone to trial but for the incorrect advice. It was thus immaterial how steep the odds were at trial when the error affected the defendant’s understanding about whether or not to go to trial, rather than his prospects for success at trial. Id
. at 1965-1966. In Class v. United States
, 138 S.Ct. 798 (2018), the Supreme Court held that a guilty plea—even one that does not expressly reserve the right to appeal—does not of itself bar a challenge to the constitutionality of a statute on appeal.
Supreme Court Preview
Categorical approach, Eighth Amendment, & Non-Delegation Doctrine
The Supreme Court will consider a number of important criminal cases next term. In two cases, the Supreme Court will revisit the categorical approach. In Stokeling v. United States
(17-5554), the Court will consider whether a state robbery offense can qualify as a violent felony under the ACCA “when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.” In United States v. Sims
(17-765) and United States v. Stitt
(17-766), the Court will consider whether burglary offenses from Arkansas and Tennessee, respectively, can qualify as generic burglary under the ACCA where those offenses include burglary of a nonpermanent or mobile structure that is adapted for overnight accommodation.
The Court will address two cases involving Eighth Amendment claims. In Timbs v. Indiana
(17-1091), a case arising out of the forfeiture of a Land Rover in connection with a state drug charge, the Court will consider “[w]hether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment.” In Madison v. Alabama
(17-7505), the Court will consider whether the Eighth Amendment precludes executing an individual whose mental disability leaves him without memory of his commission of the capital crime.
Finally, in Gundy v. United States
(17-6086), the Court will consider “[w]hether Congress violated the nondelegation doctrine by delegating to the Attorney General the authority to determine if SORNA’s registration requirements apply to offenders convicted prior to SORNA's enactment.”
Second Circuit Review
United States v. Pabon—failure to provide warrantless arrestee prompt probable cause determination may warrant suppression of evidence recovered
The Second Circuit’s decision in United States v. Pabon
, 871 F.3d 164 (2d Cir. 2017), involved a claim that officers held a warrantless arrestee after probable cause had dissipated and failed to obtain a probable cause determination in a prompt manner as required by County of Riverside v. McLaughlin
, 500 U.S. 44 (1991). While it concluded that probable cause had not dissipated, the Pabon
Court determined that probable cause to arrest can dissipate and left open the possibility that authorities may need to release an arrestee if probable cause unequivocally dissipates. The Court also rejected the government’s claim that a judge’s determination regarding probable cause to search could satisfy the requirement that “persons arrested without a warrant must promptly be brought before a neutral magistrate for a judicial determination of probable cause.” McLaughlin
, 500 U.S. at 53. While the Court rejected the defendant’s claim that the authorities had unreasonably delayed his probable cause determination, the Court left open the possibility that suppression of evidence (or presumably statements) was a possible remedy for such a violation. Further coverage is available here
United States v. Gomez—Rodriguez requires that an extension of a traffic stop be supported by reasonable suspicion; there is no de minimis exception
In another Fourth Amendment case, United States v. Gomez
, 877 F.3d 76 (2d Cir. 2017), the Second Circuit recognized that the Supreme Court’s decision in Rodriguez v. United States
, 135 S.Ct. 1609 (2015) (extension of traffic stop must be supported by reasonable suspicion), had abrogated its earlier decision in United States v. Harrison
, 606 F.3d 42 (2d Cir. 2010). The Harrison
Court had determined that 5-6 minutes of questioning unrelated to the traffic stop did not violate the Fourth Amendment. While the Gomez
Court found a Fourth Amendment violation because unrelated questioning extended the traffic stop, it determined that the good faith exception applied because such questioning was permitted by Harrison
at the time. 877 F.3d at 81.
United States v. Alexander—scope of the curtilage
The Second Circuit’s decision in United States v. Alexander
, 888 F.3d 628 (2d Cir. 2018), provides some clarification on the scope of a residence’s curtilage in light of Florida v. Jardines
, 569 U.S. 1 (2013). Looking broadly to the factors described in United States v. Dunn
, 480 U.S. 294 (1987), the Second Circuit determined that the area adjacent to a shed was within the curtilage. In Alexander
, the property was a narrow lot on Staten Island that was surrounded on three sides by a fence. The shed was located toward the back of the property, at the end of a driveway that was immediately adjacent to the house. Because this area was part of the curtilage, the officers’ warrantless search violated the Fourth Amendment. The opinion also clarifies which prior Second Circuit decisions are not consistent with Jardines
Close scrutiny of supervised release terms (lifetime supervised release, prohibition on alcohol consumption) and sentences and concern about the failure of courts to provide adequate justification for sentence
In several cases, the Second Circuit has taken issue with an aspect of a supervised release sentence or a condition. Common amongst these cases is the Second Circuit’s conclusion that the sentence or condition was not adequately justified in the record. In United States v. Brooks
, 889 F.3d 95 (2d Cir. 2018), the Second Circuit vacated a lifetime term of supervised release that had been imposed as part of sentencing in the defendant’s supervised release case. Such a sentence is “an extreme and unusual remedy,” id
. at 101, and was not warranted based on the record, which failed to distinguish his case from the “many other recidivist defendants in his position struggling with drug addiction,” id
. at 103.
In another case, United States v. Betts
, 886 F.3d 198 (2d Cir. 2018), the Second Circuit concluded that a special condition of supervision that prohibited all alcohol consumption was not reasonably related to the defendant’s underlying bank fraud conviction or his supervised release violation. Given that “[n]either defendant's underlying crime nor any of the conduct contributing to his violations of supervised release involved the use of alcohol . . .[and] [t]he District Court was not presented with any evidence suggesting that defendant ever seriously abused alcohol,” the condition was not reasonably related to the factors in § 5D1.3(b) of the Sentencing Guidelines. Id
. at 202-203.
Yet another opinion, United States v. Kalaba
, 722 F. App'x 71 (2d Cir. 2018), dealt with the district court’s failure to supply a rationale for its above-Guidelines supervised release sentence. Although the requirement to supply a rationale for the sentence is “less rigorous” when dealing with a supervised release proceeding, the failure to provide the rationale was plain error. To a similar effect is United States v. Genao
, 869 F.3d 136 (2d Cir. 2017), where the Second Circuit vacated the defendant’s sentence based on an erroneous PSR determinations and the district court’s failure to provide an adequate rationale for its sentence.
Suppression of Statements/Standard of Review
United States v. Haak—where facts are undisputed, the court of appeals reviews the legal significance of undisputed facts de novo
In United States v. Haak
, 884 F.3d 400 (2d Cir. 2018), the Second Circuit considered an appeal of an order denying the defendant’s motion to suppress statements as being involuntary. While an appellate court would normally defer to the district court’s finding of fact, the interview in Haak
was videotaped; therefore, the “case present[ed] no disputes of fact as to the actions taken, words spoken, or demeanor displayed.” Id
. at 408. In light of this, the Court ruled that conclusions about the agents’ demeanor were legal in nature and were reviewed de novo. Id
. at 408 (“We review the legal significance of undisputed facts de novo.”). The Haak
Court affirmed the district court’s rulings, but the de novo standard of review is new and may help future defendants.
United States v. Muzaffar—Eighth Amendment excessive fines claim can consider a defendant’s inability to pay and whether the forfeiture would deprive a defendant of his livelihood
The Second Circuit’s opinion in United States v. Muzaffar
, 714 F. App'x 52 (2d Cir. 2017), dealt with criminal forfeiture. Muzaffar
highlights the fact that where a defendant claims that a criminal forfeiture is grossly disproportionate and violates the Eighth Amendment’s prohibition against excessive fines, a court must consider a non-exhaustive list of factors set forth in United States v. Bajakajian
, 524 U.S. 321 (1998). Because the list is non-exhaustive, a court must also consider the defendant’s inability to pay and whether the forfeiture would deprive a defendant of his livelihood. Muzaffar
, 714 Fed. App’x at 58 (citing United States v. Viloski
, 814 F.3d 104 (2d Cir. 2016)).
Late Disclosure of Brady/Giglio Materials
United States v. Djibo—late disclosure of voluminous materials may constitute Brady or Giglio violation
The Second Circuit’s decision in United States v. Djibo
, --- Fed. App’x ---, 2018 WL 1801715 (2d Cir.), dealt with the prosecution’s failure to turn over potential Brady
materials until the eve of trial. The materials in question were voluminous and amounted to some 8,000 pages of cell phone records, several hundred of which were in Swahili. The court granted only a 1-day continuance and, after the defendant was convicted, declined to fund an expert to translate the material and denied the Rule 33 motion for a new trial. On appeal, the Second Circuit concluded that it could not determine whether a Brady
violation had occurred and remanded the matter to the district court so that the materials could be translated by an expert and so the defendant could renew his Rule 33 motion if appropriate.
Categorical Approach, Constructive Amendment, & Venue
In categorical approach news, the Second Circuit ruled that both first and second Degree New York Robbery are crimes of violence. Stuckey v. United States
, 878 F.3d 62 (2d Cir. 2017) (first-degree robbery); United States v. Smith
, 884 F.3d 437 (2d Cir. 2018) (second-degree robbery).
For anyone dealing with constructive amendment in the context of a drug conspiracy, United States v. Dove
, 884 F.3d 138 (2d Cir. 2018), is worth reviewing. Those with issues of venue will want to review United States v. Kirk Tang Yuk
, 885 F.3d 57 (2d Cir. 2018), which posits an extremely broad approach to proper venue for a conspiracy.
Proposed Amendments to Sentencing Guidelines
Amendments to SORNA, Illegal Entry, & Synthetic Drugs
The seven-member Sentencing Commission currently has three vacancies. In 2017, the Commission was unable to muster the unanimity that would have permitted it to pass amendments. In 2018, the Commission managed to achieve unanimity on some issues and the major proposals are described below. The complete proposed amendments can be found here
Section 2A3.5 (SORNA) will be amended to reflect changes to SORNA brought about by the International Megan’s Law. That provision added a new registration requirement related to intended foreign travel and added 18 U.S.C. § 2250(b), which made it illegal to fail to provide such information. Proposed amendments to § 2L1.2 (unlawful entry or reentry) would expand the universe of prior convictions that would subject a defendant to an enhancement under subsection (b)(2). The proposed amendment accomplishes this by dropping the requirement that the defendant have sustained the prior conviction before the removal. Instead, the enhancement will require only that the “criminal conduct” have occurred prior to the removal. The conviction can have been sustained before or after the removal.
In § 2D1.1 (drug offenses), the Commission has proposed three substantive amendments. The first amends the drug equivalency tables to deal with synthetic cathinones (bath salts) as a group and proposes a marijuana equivalency of 1 gram=380 grams. The amendment also establishes a minimum offense level of 12. The second amends the drug equivalency table to deal with synthetic cannabinoids as a group and proposes a marijuana equivalency of 1 gram=167 grams. The third set of amendments deals with fentanyl and fentanyl analogues and establishes a marijuana equivalency of 1gram=10 kilograms. It also provides for an enhancement for cases where fentanyl or its analogue is marketed or misrepresented to be another substance. Notwithstanding the above, the Commission has proposed replacing the term “marijuana equivalency” with the term “converted drug weight” to avoid confusion.
Finally, the commentary to § 3E1.1 will be amended to reflect that an unsuccessful challenge to the presentence report’s assessment of relevant conduct will not necessarily warrant denying the reduction.