News You Can Use: Tenth Circuit reverses denial of motion to suppress, finds involuntary confession induced by lies and false promises of leniency

This week, in United States v. Young, the Tenth Circuit held the district court erred in refusing to suppress defendant’s confession, finding the confession was involuntary because it was induced by a federal agent’s misrepresentations about the law and false promises of leniency, including a false promise about the agent’s access to the federal judiciary.

Facts

In an interview with local agents, Mr. Young admitted that a small amount of drugs found the morning of his arrest were his, but denied that a much larger quantity found later that day were his. He then revoked his consent to speak. When an FBI Special Agent later questioned Mr. Young, he told Mr. Young he had spoken to the judge, and that Mr. Young faced either a five-year or ten-year charge. The agent then told him that, with each truthful statement he made, he could “physically buy down” his sentence. Within moments, and in response to the agent’s first question, Mr. Young admitted the larger quantity of drugs were his as well.

Mr. Young moved to suppress his confession as involuntary.  At the suppression hearing, the agent claimed he misspoke – he meant to say not judge but “prosecutor.”  The agent also said he did not know the actual sentencing ranges for Mr. Young’s offenses and was just providing a tangible number to help make his case that “cooperation can pay dividends.” Although the court found the agent made false representations and improper promises of leniency, the judge concluded that Mr. Young’s confession was not involuntary and denied his motion to suppress.

Mr. Young appealed.  He argued that, although the district court was correct to find as a factual matter that there was improper coercion, it was wrong in its legal conclusion that Mr. Young’s confession was voluntary.

The Tenth Circuit’s decision

The government did not challenge on appeal the district court’s factual findings.  So the Tenth Circuit reviewed (de novo) only the trial court’s legal conclusion that Mr. Young’s confession was voluntary.  The Court of Appeals recited the law applicable to determining whether a confession has been coerced, emphasizing the inquiry is based on a totality of the circumstances and requires consideration of “both the characteristics of the accused and the details of the interrogation.” (Opinion at 7).

The Court first addressed the agent’s conduct–his misrepresentations and promises of leniency.  It was significant that the agent misrepresented the law to Mr. Young, “a factor that weighs in favor of concluding his actions were coercive.” (Opinion at 9). In addition, the agent did not merely inform Mr. Young the cooperation would be viewed favorably by a prosecutor, but said he had spoken with a federal judge who would reward him for his cooperation. “But that is not the way the federal system works,” the Court of Appeals held.  Although the Court of Appeals acknowledged that some of aspects of the interrogation were not coercive, these factors were not dispositive.

Finally, the Court of Appeals did not agree with the trial judge that Mr. Young’s prior experience with the state criminal justice system would render him less susceptible to believing promises of leniency and misrepresentations by a federal law enforcement officer explaining his access to a federal judge.

The district court’s decision was reversed and the judgment against Mr. Young was vacated.

Takeaways

  • Use this decision for its helpful recitation of the well-settled law governing involuntary confessions.
  • Note the Court’s repeated emphasis of the totality of the circumstances test (mentioned at least 6 times in the opinion) as the operative framework for assessing voluntariness, making clear no single factor is determinative.
  • But take care to view the holding in its factual context.  Consider whether the nature of this particular agent’s misrepresentation–that he had personal access to a federal judge–significantly impacted the Court’s view of the ultimate merits.

 

 

News You Can Use: Tenth Circuit limits use of community caretaking exception and inevitable discovery doctrine in Fourth Amendment case

In United States v Neugin, __F.3d__, 2020 WL 2091842 (10th Cir. May 1, 2020) (published), the Tenth Circuit limited the use of the community caretaking exception and refused to apply the inevitable discovery doctrine to a search of an automobile. Judge Matheson authored, joined by Judge Ebel. Judge Hartz dissented.

Facts: An officer spotted ammunition while lifting the lid of a truck’s camper; he ran a background check and the driver was a felon.

Officers responded to a domestic dispute between Mr. Neugin and his girlfriend, Ms. Parrish, that was taking place at a restaurant. While mediating the dispute, one officer, without permission, opened the lid of the truck’s camper to get Ms. Parrish’s belongings. In doing so, he looked inside the camper and saw a large bucket containing several rounds of ammunition. Officers ran a background check on Mr. Neugin, which showed that he was a felon. An officer asked Ms. Parrish whether Mr. Neugin had a firearm. She said he had a shotgun in the truck and had threatened her with it the evening before. Ms. Parrish consented to the search of the vehicle, and one officer saw the stock of a firearm protruding from the truck. It turned out to be a shotgun, and Mr. Neugin was arrested. Mr. Neugin pleaded guilty to being a felon in possession of a firearm and ammunition, but preserved the suppression issues for appeal.

The community caretaking exception did not excuse the warrantless search.

The community caretaking exception applies only when an officer’s actions are warranted by (1) state law or sound police procedure, and are (2) justified by concern for the safety of the general public. The officer’s actions must also outweigh the individual’s privacy interests. Here, opening the camper wasn’t necessary to protect anyone, even Ms. Parrish. While the search was intended to facilitate the retrieval of Ms. Parrish’s belongings from the scene of the dispute, an officer’s “benign motive” is not enough, and the search was not “de minimis.”

The inevitable discovery doctrine didn’t apply because there would have been no reason to impound the car absent the warrantless search that led to Mr. Neugin’s arrest.

The government argued that even if opening the camper was unconstitutional, the evidence should not have been suppressed because the truck inevitably would have been impounded and searched. The Tenth Circuit disagreed. Instead, the Court reasoned that, if officers had not opened the camper, they wouldn’t have necessarily seen the ammunition, run a criminal history check, or found the gun. Without the violation, therefore, Mr. Neugin would not inevitably have been arrested. And without the arrest, the truck would not inevitably have been impounded and searched. Even though the truck was broken down, Mr. Neugin could have called his own towing company or a mechanic.

Notes from the notes.

Some other key points appear in footnotes, but are worth noting.

  • The plain-view exception did not apply because the officer was not lawfully positioned when he found the ammunition.
  • The officer could not rely on Ms. Parrish’s consent to search because any consent came after the warrantless search that uncovered the ammunition.
  • The automobile exception didn’t apply because the officer did not have probable cause to believe that contraband would be found inside. 

Hartz dissents.

Judge Hartz would have affirmed the district court’s decision that the community caretaking exception applied. He reasoned that the community caretaking exception extended to the officers’ attempts to keep the disputing couple under control and keep an eye on Ms. Parrish while she retrieved her belongings from the truck. He thus thought it was proper for the officer to lift the lid of the camper shell, so as to mediate any further argument.

Key Takeaways

The community caretaking exception is limited. Non-investigatory searches of automobiles under the community caretaking function are only justified if warranted by state law or sound police procedure, and are justified by concern for the safety of the general public.

Use this case for its good language on inevitable discovery. The Court reaffirms that “the inevitable discovery exception to the exclusionary rule cannot be invoked because of [a] highly speculative assumption of ‘inevitability.’” United States v. Owens, 782 F.2d 146, 153 (10th Cir. 1986).

News You Can Use: Tenth Circuit Reverses First Degree Murder Conviction (and reaffirms important principles of appellate law along the way)

The Tenth Circuit reversed appellant Brian Tony’s first-degree murder conviction this week and remanded the case for a new trial.  Not only is this an amazing defense victory with an incredible remedy (kudos to AFPD Josh Lee in Denver), but the relatively short appellate decision is packed with important information, particularly for appellate lawyers. This decision also should send a clear message to trial courts: take extra care before excluding defense evidence.

FACTS: Mr. Tony’s defense at trial was that he acted in self-defense or at least without premeditation.  It was a plausible defense because the killing occurred during a knock-down, drag-out fight.  In support of this defense, Mr. Tony wanted to put on evidence that the decedent was high on methamphetamine at the time of the killing.  His theory of relevance was straightforward: meth makes people behave erratically- they can become crazy and violent- which supported the notion that the decedent was the first aggressor.  The trial judge, however, excluded the methamphetamine evidence on the ground that the defense had not proffered a proper, non-propensity purpose under Federal Rule 404(b).

HOLDING: The judge erred in excluding the defense evidence because defense counsel had proffered a proper purpose. But there are lots of other interesting points of law involving appellate procedure that the Tenth Circuit discusses in reaching its holding.

KEY TAKEAWAYS

Use this case if you are looking for law on the scope of permissible affirmance on alternative grounds

The government asked the court of appeals to affirm the conviction on the alternative ground that the meth evidence wasn’t relevant without expert testimony that (1) the decedent was actually high at the time of the fight and (2) meth makes people violent.  The defense responded with a legal argument: because any decision on evidentiary relevance is committed to the district court’s (not the appellate court’s) discretion, the Tenth Circuit could affirm on that ground only if it would be an abuse of the district court’s discretion to rule for the defense on the relevance issue.  This principle has long existed in the Tenth Circuit’s case law, but it was buried by dozens of cases that ignored it and affirmed evidentiary rulings on alternative grounds with no discussion of the discretionary nature of the decision.  This principle is now revived.

Use this case if you are looking to police the government’s burden of proof on harmless error

The government argued that excluding the meth evidence was harmless because the evidence at trial overwhelmingly established Mr. Tony had not acted in self-defense. On this point, the court first clarified that the government bears the burden of demonstrating that a preserved, non-constitutional error is harmless.  While the government had argued that the error was harmless with respect to self-defense, it had not argued that it was harmless with respect to the lack of premeditation.  The government’s failure to make this argument operated as a waiver.  This too is an important point of law – that the government waives harmless error by not arguing it.

Use this case if you are looking for law on why a new trial is the appropriate remedy for evidentiary error

The government argued that instead of remanding for a new trial, the circuit should have remanded the case to the district court to make findings on whether it would have excluded the meth evidence under Rule 403 as substantially more prejudicial than probative.  The court said no for two reasons.  The first was the trial had happened two years earlier, which would make it hard for the district court to put itself back in the position of making pretrial rulings.  The second reason was that remanding for findings would give the district court, eager to avoid a retrial, “an overwhelming temptation to rationalize the exclusion of the meth evidence under Rule 403.”  Op. at 11.  This is another principle that existed but was moribund in the circuit’s case law until this case reaffirmed it.

News You Can Use: Tenth Circuit holds mandating medication on supervised release requires particularized findings and compelling circumstances

Earlier this fall, in United States v Malone the Tenth Circuit confronted a special condition of supervised release that directed the defendant to participate in mental health treatment while on supervision.   Conditions of this sort are fairly routine, but this condition included a particularly problematic feature – it required Mr. Malone to “take prescribed medication as directed.”  In imposing the condition, the trial court gave no justification for it.

There was no objection to the condition in the district court, but the Tenth Circuit reversed for plain error.  The court explained that requiring a person to take psychotropic drugs – which this requirement, as part of a mental health condition, plainly did – intrudes on a significant liberty interest.  And when a court wants to impose a condition of supervised release that “invades a fundamental right or liberty interest,” it must make particularized findings that set out “compelling circumstances” that justify the condition.  The district court didn’t do so here, and because the record would not have supported the necessary findings in any event, the court directed the district court to strike the “offending language” from the judgment.

Key Takeaways:

  • Keep an eye out for conditions like this in PSRs that come your way.  As the circuit recognized, this condition was being “broadly imposed as a ‘stock’ special condition” in Kansas.  Similar conditions have also cropped up in other judicial districts.
    • To that end, take note of this language in Malone:

      “When “stock” special conditions are proposed and the defendant does not object, it is easy to overlook the constitutional implications at stake. But even when the defendant does not object, the district court must ensure that its conditions conform to the Constitution.”

  • Carefully review proposed conditions to see whether they infringe on fundamental rights or liberty interests.  Lots of conditions fit this description.  Examples include: occupational restrictions, restrictions on familial association, and possessing of legal, sexually explicit material.
  • Develop your record at sentencing.  Ask the district court to make the requisite findings and establish the compelling reasons to justify the condition.

Preserve This! SCOTUS to decide whether crime that can be committed recklessly can qualify as a “violent felony” under ACCA

Today, the United States Supreme Court granted certiorari in Walker v United States, out of the Sixth Circuit, to decide whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. 924(e).

As the petition for certiorari explains, there is a deep and widely recognized conflict in the courts of appeals over that question.

The Tenth Circuit takes the view, like the Sixth Circuit, that offenses that can be committed recklessly can nevertheless qualify as violent felonies under ACCA’s force clause. See, e.g., United States v Hammons (for purposes of determining whether an offense constitutes a valid ACCA predicate, “it makes no difference whether the person applying the force had the specific intention of causing harm or instead merely acted recklessly”).

Make sure to preserve this issue!

News You Can Use: Tenth Circuit Holds Retaliation Against Witness Is Not a Crime of Violence for Purposes of 924(c)

This case arose out of the Johnson v. United States litigation that has been going on since 2015. After Johnson, Aaron Bowen filed a motion to vacate his sentence under 28 U.S.C. § 2255, arguing that his predicate conviction for witness retaliation was not a crime of violence for purposes of 18 U.S.C. § 924(c). The case was stayed pending the Supreme Court’s decision in United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319 (2019), where the Supreme Court recently held the residual clause of Section 924(c) is void for vagueness.

The Tenth Circuit’s decision in Mr. Bowen’s case had several important holdings:

First, that Davis is a new substantive rule that is retroactively applicable on collateral review.

Second, that Mr. Bowen’s convictions for witness retaliation do not qualify as crimes of violence under 18 U.S.C. § 924(c)(3)(A).

Third, that Mr. Bowen is actually innocent of 18 U.S.C. § 924(c)(1)—because his predicate conviction does not fall under the force clause of 924(c), and the residual clause was invalidated by Davis.

ANALYSIS OF FORCE AGAINST PROPERTY

The key takeaway is that force against property is analyzed differently from force against persons for purposes of the 924(c) force clause.  Recall that, unlike its ACCA counterpart, the elements clause of 18 U.S.C. § 924(c) encompasses crimes that have as an element the use of physical force against not just people, but also other people’s property. After cases like Stokeling v United States and United States v Ontiveros, almost any force that causes bodily injury is enough to qualify under the force clause. This case, however, required the circuit to decide for the first time how much force is necessary to satisfy the statute when the force is directed at property.

The predicate crime here was federal retaliation against a witness, 18 U.S.C. § 1513(b)(2). A defendant may be convicted of that offense if either (1) with intent to retaliate, he knowingly causes or threatens to cause bodily injury to a witness or (2) knowingly causes or threatens to cause damage to a witness’s property. The Tenth Circuit concluded that witness retaliation through bodily injury qualifies as a crime of violence under § 924(c)(3)’s elements clause, but witness retaliation through property damage does not.

Although the underlying facts of Mr. Bowen’s predicate conviction encompassed actual force against persons and property, under the well-worn categorical approach, we all know that the facts don’t matter. In other words, to determine whether Bowen’s witness retaliation conviction has “as an element the use, attempted use, or threatened use of [violent] force against the person or property of another,” 18 U.S.C. § 924(c)(3)(A), courts must look “only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction.” United States v Serafin, 562 F.3d 1105, 1107–08 (10th Cir. 2009).

A Sixth Circuit case, United States v Edwards, 321 F. App’x 481 (6th Cir. 2009), demonstrated that the federal witness retaliation could be satisfied by spray-painting a car. Citing to Moncrieffe v. Holder, the Circuit explained that the salient question was whether spray-painting a witness’s car qualifies as a crime of violence under § 924(c)(3)’s elements clause. 569 U.S. 184, 190–91 (2013) (“[W]e must presume that the conviction rested upon nothing more than the least of the acts criminalized, and then determine whether even those acts are encompassed by [§ 924(c)(3)’s elements clause].”).

Ultimately, the Tenth Circuit agreed with Mr. Bowen that property “crimes of violence” under § 924(c)(3)(A) are those that include “violent force,” not merely those that “injure property.” Spray painting a car did not rise to the level of “violent force,” and so Mr. Bowen’s predicate conviction was not a crime of violence.

The decision was over a dissent by Judge McHugh, and also creates a split with the Second Circuit. See United States v Hill, 890 F.3d 51, 58 (2d Cir. 2018).

KEY TAKEAWAY

Force against property for purposes of 924(c)’s force clause requires violent force against property—mere property damage (such as spray-painting a car) does not satisfy the force clause. The Tenth Circuit didn’t elaborate on what sorts of offenses against property would qualify, but explained only that mere damage to property isn’t enough.

News You Can Use: SCOTUS refrains (for now) from reviving nondelegation doctrine in Gundy v. United States

By Perrin Tourangeau

Perrin is a summer intern at the Office of the Federal Public Defender for the Districts of Colorado and Wyoming.  She is a rising second-year law student at the University of Virginia School of Law.  She was born and raised in Denver, and hopes to return to Colorado after finishing law school to pursue a career in public defense.

 In  Gundy v United States, a plurality of the Supreme Court narrowly dodged a nondelegation conflict presented by a challenge to the Sex Offender Registration and Notification Act (SORNA). Justices Kagan, Ginsburg, Breyer, and Sotomayor concluded that a SORNA provision which gives the Attorney General the authority “to specify the applicability” of SORNA’s registration requirements to sex offenders who were convicted before its enactment (pre-Act offenders) was a “distinctly small-bore” legislative delegation and, thus, “easily passes [constitutional] muster.” Gundy v. United States, –S. Ct.–, 9, 2019 WL 2527473 (2019); see 34 U.S.C. § 20913(d).

The nondelegation doctrine prohibits Congress from transferring its legislative power to another federal branch. Id. at 2. However, Congress can “confer substantial discretion on executive agencies to implement and enforce the laws, so long as it “supplie[s] an intelligible principle to guide the delegee’s use of discretion.” Id. at 4. While the provision in question does not explicitly impose a limitation on the Attorney General’s discretion regarding the application of SORNA to pre-Act offenders, based on the statute’s declaration of purpose, definition of “sex offender,” and legislative history, the plurality interpreted it to confine “the Attorney General’s discretion … only to considering and addressing feasibility issues” of applying the statute to pre-Act offenders, rather than allowing the Attorney General to decide whether or not to apply the statute to pre-Act offenders in general. Id.at 4-7. Therefore, the Court held that, because SORNA requires “the Attorney general [to] apply SORNA’s registration requirements as soon as feasible to offenders convicted before the enactment,” the statute provides an intelligible principle limiting the Attorney General’s authority and, thus, does not violate the nondelegation doctrine. Id. at 2.

The plurality expressed its hesitation to use the nondelegation doctrine to invalidate the provision, stating that “if SORNA’s delegation is unconstitutional, then most of the Government is unconstitutional,” and highlighting Congress’s need to delegate authority “under broad general directives.” Id. at 9 (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989)). As noted on SCOTUS Blog, “[t]he lineup in Gundy shows that there are four justices … who are still willing to use the tools of statutory interpretation to fend off the nondelegation problem.” Mila Sohoni, Opinion analysis: Court refuses to resurrect nondelegation doctrine, SCOTUSBlog (June 20, 2019).

Justice Alito concurred in the judgment only, stating that “[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.” Id. at 10 (Alito, J., concurring in the judgment).

Justice Gorsuch, joined by Justice Thomas and the Chief Justice, dissented, taking issue with both the plurality’s interpretation of SORNA and its nondelegation analysis. Id. (Gorsuch, J., dissenting). Looking to contradictory representations about the provision’s meaning made by the government in previous cases and the lack of an explicit standard limiting the delegation in the statute’s text, the dissent concluded that SORNA’s delegation impermissibly authorizes “the nation’s chief law enforcement officer to write the criminal laws he is charged with enforcing” and provides no meaningful standard by which to limit that delegation. Id. at 22-23. Justice Gorsuch stated that in a previous case, “the government told this Court that SORNA supplies no standards regulating the Attorney General’s treatment of pre-Act offenders. This Court agreed, and everyone proceeded with eyes open about the potential constitutional consequences; in fact, the dissent expressly warned that adopting such a broad construction … would yield the separation-of-powers challenge we face today.” Id. at 25. Although Justice Gorsuch described the plurality’s feasibility standard as “imaginary,” he noted that even were it explicitly written into the section at issue, it is too ambiguous to actually cabin the executive’s exercise of the statutory delegation. Id. at 23.

The dissent proposes a more potent (or, as the dissent suggests, more constitutionally faithful) version of the nondelegation doctrine. Justice Gorsuch characterizes the intelligible principle doctrine as “another way to describe the traditional rule that Congress may leave the executive the responsibility to find facts and fill up details.” Id. at 17. According to the dissent, three kinds of statutory delegations “are constitutionally permissible: (1) legislation in which Congress makes the important policy decisions but leaves it to the executive to ‘fill up the details’; (2) legislation in which Congress prescribes the rule but leaves it to the executive to conduct fact-finding when the rule is applied; and (3) legislation that allows the executive broad discretionary power concerning matters that also fall within a zone of executive power.” Sohoni, supra. To the dissent, the nondelegation doctrine is a vital constitutional protection because it aids in the preservation of individual liberties, promotes legislative deliberation, provides stability, predictability, and fair notice to individuals, and increases political accountability. Gundy, –S. Ct. at 14(Gorsuch, J., dissenting).

Responding to the plurality’s concerns about the nondelegation doctrine’s potential to destabilize the entire modern executive branch, Justice Gorsuch argued that enforcing the doctrine does not “spell doom for what some call the ‘administrative state.’” Id. at 22. He frames the doctrine as merely a “procedural protection” and, thus, noted that it “does not prohibit any particular policy outcome, [nor does it] dictate any conclusion about the proper size and scope of government. Id. This construction of the doctrine hardly leaves Congress without tools to achieve its legislative objectives: according to Justice Gorsuch, Congress permissibly “may … authorize executive branch officials to fill in even a large number of details, to find facts that trigger the generally applicable rule of conduct specified in a statute, or to exercise non-legislative powers.” Id.

Justice Kavanaugh did not participate in the decision.

Takeaways

  • SORNA applies to pre-Act offenders. This much is obvious: those convicted of a qualifying sex offense before SORNA’s enactment (pre-Act offenders) must comply with SORNA’s registration requirements as dictated by the Attorney General pursuant to 34 U.S.C. § 20913(d) and 75 Fed. Reg. 81850. Those pre-Act offenders who knowingly fail to register under the Act may be imprisoned for up to ten years. 18 U.S.C. § 2250(a).
  • Be on the lookout for potential challenges to legislative delegations in criminal statutes. Four justices explicitly indicated in Gundy that they are “willing to reconsider the nondelegation doctrine from the ground up,” and Justice Kavanaugh could provide a fifth vote to revitalize the doctrine in future cases. Sohoni, supra. The Gundy dissent is particularly concerned with statutory delegations that combine “lawmaking and law enforcement responsibilities … in the same hands” as well as those that give the executive branch the power to “make all the important policy decisions” without providing a meaningful standard “court[s] might later use to judge whether [the executive] exceeded the bounds of the authority,” like the ambiguous feasibility standard that the majority read into34 U.S.C. § 20913(d). Gundy, –S. Ct. at 23 (Gorsuch, J., dissenting). However, some commentators doubt the potency of this potential revival of the nondelegation doctrine, arguing that the “intelligible principle” doctrine is too “mushy” to be applied consistently by the Court, Rick Hills, Gundy, Constitutional Coalitions, and the Credible Commitment Problem of the Constitutional Doctrine, PrawfsBlawg (June 22, 2019), and that if the Court was unwilling to invalidate a “low-stakes” statute like that in Gundy, it is highly unlikely to invalidate future laws as the stakes increase. Adrian Vermeule, Never Jam Today, Notice & Comment (June 20, 2019).
  • Preserve, preserve, preserve. Given Justice Alito’s concurrence and the fact that Justice Kavanaugh did not participate in the Gundy decision, lawyers should continue to preserve the nondelegation argument regarding U.S.C. § 20913(d) in SORNA cases involving pre-Act offenders. The Gundy concurrence and dissent suggest that future challenges to this provision might be worthwhile, and we may even see rehearing requests pr more certiorari petitions because Justice Kavanaugh did not weigh in on the decision.

 

News You Can Use: Tenth Circuit holds supervised release Standard Condition 12 is improper delegation of authority to probation – United States v. Cabral

Standard Condition 12 requires people on supervised release to notify third parties about the “risks” they pose, at the discretion of their probation officer. See U.S.S.G. § 5D1.3(c)(12). Last year, in United States v Hull, 893 F.3d 1221 (10th Cir. 2018), the Tenth Circuit upheld this condition against vagueness and improper delegation challenges in a case where the judge specified that the relevant “risks” were those related to the defendant’s prior convictions for bank robbery and home invasion.

Recently, in United States v Cabral, —F.3d—, 2019 WL 2416950 (10th Cir. 2019), the Tenth Circuit vacated Standard Condition 12 in a case where the judge refused to limit its scope in any way. The Tenth Circuit punted on Mr. Cabral’s vagueness challenge, which it found prudentially unripe, but found that the unbounded condition was an improper delegation of authority to the probation officer.

The law here is well settled. Article III gives only judges the authority to impose punishment, and the judiciary may not delegate that authority to a non-judicial probation officer. Mr. Cabral argued on appeal that the risk-notification condition improperly delegates to probation the power to define the term “risk”—and thus “to determine what conduct the condition proscribes, and when it will be enforced”—without meaningful guidance from the district court. The circuit agreed: “By tasking Mr. Cabral’s probation officer with determining whether Mr. Cabral poses a “risk” to others in any facet of his life and requiring Mr. Cabral to comply with any order to notify someone of any such risk, the district court delegated broad decision-making authority to the probation officer that could implicate a variety of liberty interests.” 2019 WL 2416950, at *7.

Notably, the law on interpreting these open-ended supervised release conditions is usually pretty bad for us on appeal, because the Tenth Circuit interprets conditions “such that they comply with the law.” But as you’ll see in the opinion, it was impossible to apply this general rule here, because of what the district court said at sentencing. (For example, “I don’t care if I can’t say what the risk is now.”) As Judge McHugh wrote: “the district court here emphatically opened the door to boundless scenarios implicating various liberty interests,” from the right to familial association to the right to engage in a lawful occupation. 2019 WL 2416950, at *7-8.

Also noteworthy is Judge McHugh’s apparent sensitivity to the hardship indigent clients face in pursuing modification of supervised release, because there is no right to appointed counsel at those proceedings: “the prospect that Mr. Cabral would otherwise have to retain private counsel or proceed pro se to challenge the condition further supports our immediate review of his challenge, with the benefit (to him and to us) of counsel’s briefing.”

Takeaways

  • Seek clarification of Standard Condition 12. After Cabral, it’s clear that Standard Condition 12 requires some kind of limitation—it can’t be read to allow probation officers to require disclosure of literally any risk. So ask the sentencing court to be clear about what risks your client will be required to disclose, or else propose a limit of your own. It may, for instance, make sense to tie the relevant risks directly to your client’s specific criminal history, as Judge Brimmer did in Hull.
  • Watch out for improper delegations to the probation office. This opinion serves as a good reminder that probation officers are not judges, and their discretion should be limited to deciding “ministerial” questions—like what time to show up for an appointment—and not foundational ones—like what conduct is subject to a condition at all.
  • Keep an eye on standard conditions. Generally speaking, the Tenth Circuit is quite deferential when it comes to the standard conditions of supervised release set out in the Sentencing Guidelines. But as Cabral demonstrates, there are limits to that deference, and you shouldn’t assume that an otherwise overbroad, over-delegating condition is OK just because it’s a standard one.
  • Try to resolve questions about conditions of supervised release at sentencing. It may be tempting to put off resolving questions about the scope of your client’s conditions of supervised release until, well, he is actually on supervised release. But as Cabral reminds us, that strategy may put your client in a tough spot: After all, there’s no right to counsel to pursue modifications of supervised release. So if your client is facing a problematic condition of supervised release, see if you can take care of it at sentencing.

News You Can Use: SCOTUS upholds separate sovereigns doctrine in Gamble v. United States

 

This week, in Gamble v United States, the Supreme Court reaffirmed the “longstanding interpretation” of the double jeopardy clause that prosecution of the same crime by separate sovereigns does not violate the Fifth Amendment. The Court was split 7-2.

The Facts

The cops pulled over Terance Gamble for a faulty headlight. A police officer smelled marijuana and searched Gamble’s car, where he found two bags of marijuana, a digital scale and a handgun.

Gamble pleaded guilty to being a felon in possession of a firearm in Alabama state court, and then federal prosecutors indicted him for the same instance of possession in federal court under 18 U.S.C. §922(g)(1). Gamble moved to dismiss on one ground: his federal prosecution for the gun charge violated the double jeopardy clause. The trial court rejected his claim, explaining that it had to follow the separate sovereigns doctrine unless and until the Supreme Court overruled it. The Eleventh Circuit affirmed.

The Opinion (and the notable dissents)

Justice Samuel Alito wrote the majority opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh. The basic conclusion in the Alito opinion is that, “where there are two sovereigns . . . there are two laws,” and therefore two offenses. Accordingly, prosecution by both state and federal authorities for the same crime but under different statutes is not a double jeopardy violation. Gamble’s primary argument was that the Supreme Court’s line of cases on the “separate sovereigns” doctrine conflicts with the understanding of the Founding Fathers who ratified the double jeopardy clause. But Alito concluded that principles of stare decisis could not be undone by mere “ambiguous historical evidence.”

Justices Ruth Bader Ginsburg and Neil Gorsuch each filed their own notable dissents. Justice Ginsburg’s dissent included some pointed criticism of the federal code: “The expansion of federal criminal law has exacerbated the problems created by the separate-sovereigns doctrine. Ill effects of the doctrine might once have been tempered by the limited overlap between federal and state criminal law. In the last half century, however, federal criminal law has been extended pervasively into areas once left to the States.” Ginsburg further noted that the “separate sovereigns” doctrine “has been subject to relentless criticism by members of the bench, bar, and academy,” and thus she would have ruled in Gamble’s favor.

Gorsuch’s dissent echoed many of Ginsburg’s sentiments, but he took specific aim at the majority’s stare decisis reasoning, stating: “stare decisis isn’t supposed to be the art of being methodically ignorant of what everyone knows.” In his view, “blind obedience to stare decisis would leave this Court still abiding grotesque errors,” such as the Supreme Court’s 1857 decision holding that blacks were not citizens and could not bring a lawsuit in U.S. courts or its 1944 decision upholding the internment of Japanese-Americans during World War II. Gorsuch’s dissent also concludes with a heated criticism of governmental power: “governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is the poor and the weak, and the unpopular and controversial who suffer first—and there is nothing to stop them from being the last.”

Takeaway

  • Your client can still be charged and tried in both state and federal court for the same underlying conduct, and it does not violate double jeopardy.