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.

News You Can Use: Tenth Circuit’s decision in United States v. Aragon – a Narrow Drug Quantity Ruling That Raises Broad Questions

In United States v. Aragon, 922 F.3d 1102 (10th Cir. 2019), the Tenth Circuit issued an interesting but fact-specific holding that the district court clearly erred in determining the applicable drug quantity. At the same time, the opinions in Aragon raised without resolving fundamental questions about the role of the court and counsel in sentencing proceedings.  Read on about the opinion, and be sure to check out the takeaways at the bottom of the post.

 I.           The Drug Quantity Issue

Leonard Aragon pleaded guilty to possessing with intent to distribute controlled substances. The charges were based on two controlled buys in which Mr. Aragon sold a total of 71.9 grams of heroin to a confidential informant. The drug quantity issue arose from additional suspected drugs recovered from Mr. Aragon’s car at the time of his later arrest. The district court found that the suspected drugs amounted to 11 additional grams of heroin and 28.5 grams of methamphetamine. The district court’s findings increased Mr. Aragon’s offense level by 4 and produced a higher guidelines range.

On appeal, Mr. Aragon maintained that the district court clearly erred by determining that the suspected heroin weighed 11 grams and that the suspected methamphetamine weighed 28.5 grams. The record revealed only the “packaged weights” of the suspected drugs, not the “net weights” of the drugs themselves. The district court had attempted to derive the net weights by “deducting half a gram for the packaging” of each package. Slip op. at 7. It was this move that Mr. Aragon attacked as clearly erroneous. Mr. Aragon pointed out there was no evidence about the weight of the packaging and posited that the available photographs made it “impossible to tell” how much of the packaged weight was attributable to the packaging itself. Id. at 14.

 The Tenth Circuit agreed. The Court characterized “the district court’s half-a-gram figure” as “guesswork” and ruled that drug quantity findings cannot be sustained on such a basis. Id. The Tenth Circuit went on to reject a harmless-error defense interposed by the Government. The Government argued that Mr. Aragon’s offense level would have remained the same “even if the packaging of the heroin and methamphetamine found in his car weighed 11 grams each.” Id. at 15. The Tenth Circuit, however, took note of cases in which the weight attributed to drug packaging “was dramatic,” including a prior Tenth Circuit case in which the packaged weight of heroin was 28.2 grams but the net weight was only 3.8 grams. Id. Given that the photographs in the case were ambiguous, the Tenth Circuit found itself unable to conclude that the district court’s error did not affect Mr. Aragon’s offense level. Id. at 16.

The Tenth Circuit vacated Mr. Aragon’s sentence and remanded for resentencing. Id. at 19.

 II.          The Roles of District Courts and Counsel at Sentencing

 Although the Tenth Circuit vacated Mr. Aragon’s sentence on narrow grounds, both the Court’s opinion and a concurrence by Judge Holmes broached broader issues.

 A.          What are the limits on a district court’s authority to act sua sponte at sentencing?

Before ruling in favor of Mr. Aragon on the drug quantity issue, the Tenth Circuit addressed and rejected Mr. Aragon’s argument that the district court had abused its discretion by acting sua sponte at sentencing.

 This issue arose because it was the sentencing judge, not the Government, who elicited the evidence regarding what was found in Mr. Aragon’s car. The parties had signed a plea agreement stating that the appropriate guidelines range was one that did not add levels based on what was found in Mr. Aragon’s car. Id. at 2-4. The Government had agreed with that calculation because, unlike the heroin from the controlled buys, the suspected drugs found in Mr. Aragon’s car were neither field tested nor sent to a laboratory for formal testing. Id. at 6. No such testing was pursued “because Mr. Aragon had quickly indicated his intent to resolve the case, which prompted the government to cease its investigation.” Id. The sentencing judge, however, decided to collect and present its own evidence regarding what was found in Mr. Aragon’s car. The judge directed the Government to provide the court with “all documents and reports relating to Mr. Aragon’s arrest and the discovery of [suspected] drugs in his car,” a police report relating to phone calls that Mr. Aragon had made from jail, and a report regarding the contents of Mr. Aragon’s cell phone. Id. at 4. In addition, the judge directed the Government to “have the case agent present at sentencing.” Id. Over Mr. Aragon’s objection, the district court relied on the evidence that it had gathered to increase Mr. Aragon’s guidelines range.

Mr. Aragon maintained the district court’s sua sponte actions were improper, but the Tenth Circuit disagreed. The Court reaffirmed prior precedent that a district court’s power to gather and elicit its own evidence is incident to its obligation to determine the facts relevant facts at sentencing. Id. at 8. Still, the Court recognized that this power is not absolute. While ultimately rejecting Mr. Aragon’s argument, the Court did agree with Mr. Aragon on two preliminary points: (1) that a sentencing judge who gathers and elicits his own evidence “must take care not to create the appearance that he or she is less than totally impartial” and (2) that a district court’s power to gather and elicit its own evidence is “subject to abuse-of-discretion review.” Id. at 8, 10. The Court simply held that Mr. Aragon had not established an abuse of discretion on the particular facts of his case. Id. at 8-12.

The Aragon opinion ultimately sheds little broader light on when a district court’s sua sponte conduct at sentencing may go too far. The decision says that sua sponte actions may be overturned for an abuse of discretion. The opinion does not explain which factors are material to assessing whether a district court has abused its discretion, though it did deem significant that the judge had “made multiple statements to Mr. Aragon reassuring him that the manner in which the additional evidence was uncovered would not impact his sentence.” Id. at 11.

 B.          Must counsel disclose to the district court all information that “reasonably could be deemed” to affect the guidelines range?

A concurring opinion by Judge Holmes took aim at an ethical question that had been raised by the sentencing judge. In explaining his decision to gather and elicit evidence sua sponte, the district judge expressed the view that counsel for the parties had intentionally concealed the fact that contraband had been found in Mr. Aragon’s car and thereby acted improperly. Id. at 20 (Holmes, J., concurring). The principal opinion, however, described how defense counsel had disclosed at the change-of-plea hearing that contraband that might have increased Mr. Aragon’s offense level had been found in his car when he was arrested, and the Court assumed without deciding that the district court clearly erred in finding that the parties had acted deceptively. Id. at 2-3, 8-9 (principal opinion). Judge Holmes deemed himself “content with that assumption” and “d[id] not opine on the propriety of counsel’s actions in this case.” Id. at 20, 26 (Holmes, J., concurring). Nevertheless, speaking “hypothetically,” Judge Holmes wrote separately to offer his view that it would violate counsel’s duty of candor to the tribunal to “agree to intentionally withhold from the court’s consideration evidence that reasonably could be deemed to qualify as relevant conduct.” Id. at 24. Neither of the other two judges on the panel joined Judge Holmes’s concurrence.

 TAKEAWAYS

  •  Packaged Weights, Gross Weights, and Net Weights (Oh My?)

Be on guard for drug quantities that are reported as “packaged weights” or (equivalently) as “gross weights” — that is, the combined weight of drugs and their packaging. Likewise, be skeptical if quantities reported do not explicitly specify that they are “net weights” — that is, the weight of the drugs themselves, not including any packaging. Under U.S.S.G. § 2D1.1 n.1, the applicable drug quantity does not include packaging or other material “that must be separated from the controlled substance before the controlled substance can be used.” And the Aragon opinion highlights cases in which the difference between gross weight and net weight was large.

  •  No Guessing Allowed.

 Aragon is also useful because it reemphasizes the more broadly applicable principle that a drug quantity calculation must be grounded in something more than guesswork. Consider an objection on these grounds any time the Government’s or Probation’s drug quantity calculation is based on ambiguous or contradictory information.

  •  The Judge’s Authority to Investigate

 Aragon confirms that, as a general matter, a judge may gather and elicit evidence in connection with sentencing. Defense counsel should anticipate and, in appropriate cases prepare for, this possibility.

 

 

 

 

 

 

 

 

News You Can Use: Tenth Circuit Vacates Denial of Suppression Motion in a Published Decision (With Photos!)

In US v. Gaines, the Tenth Circuit vacated the denial of a motion to suppress in a published opinion, ruling: (1) the defendant was seized when police officers confronted him about reported drug sales in a parking lot; and (2) the subsequent discovery of an arrest warrant did not attenuate the connection between the seizure and the evidence. And they did so with style, buttressing their points with actual photographs of the alleged seizure in question. The opinion doesn’t break new legal ground, but it provides a nice review of some basic Fourth Amendment principles—and is a great example of creative appellate advocacy.

Background

Kansas City police received a 911 call reporting a man dressed in red had sold drugs in a local parking lot. Based on that call, uniformed officers driving two separate police cars pulled into the parking lot and parked behind a car occupied by a man wearing red clothing—Mr. Gaines. Police turned on their flashing roof lights and gestured for Mr. Gaines to get out of his car. To help established the scene, Mr. Gaines included the following image the Opening Brief:

Photo1

After Mr. Gaines got out of his car, one officer confronted him about the reported drug sale, observed an open container of alcohol, and smelled PCP. Officers told Mr. Gaines he would be detained. Mr. Gaines then grabbed a pouch from his car and fled the scene. He was soon captured. Meanwhile, police discovered cocaine, marijuana, PCP, drug paraphernalia, cash, and a handgun in his car.  Mr. Gaines unsuccessfully moved to suppress this evidence, and was convicted after trial. He appealed the denial of his motion to suppress.

Tenth Circuit Decision

The Tenth Circuit vacated the denial of the suppression motion in a published opinion, focusing on two issues: (1) whether there was a seizure; and (2) whether the relationship between the seizure and the evidence was attenuated.

  • There was a seizure

The Tenth Circuit found Mr. Gaines was seized because a reasonable person would not have felt free to leave the scene, and Mr. Gaines in fact yielded to the police’s show of authority. The opinion goes into a lot of detail about what specifically made the encounter a seizure, including that it involved uniformed police officers in marked police cars with flashing lights, where state law requires motorists to stop for flashing lights. The Court also emphasized one of the officers had gestured for Mr. Gaines to get out of his car before asking him an accusatory question.

  • There was no attenuation

The Tenth Circuit also rejected the government’s attempt to salvage the case through the attenuation doctrine. Under that doctrine, evidence does not need to be excluded if the Government can meet its heavy burden of showing that there is only a weak or attenuated connection to the asserted Fourth Amendment violation. When applying the attenuation doctrine, the court considers: (1) the temporal proximity between the alleged Fourth Amendment violation and the discovery of the evidence; (2) the presence or absence of intervening circumstances; and (3) the purpose and flagrancy of the police wrongdoing.

Specifically, the Tenth Circuit rejected the government’s arguments that either an outstanding arrest warrant or the subsequent development of probable cause established attenuation in this case. With respect to the warrant, the Tenth Circuit noted that executing the warrant and arresting Mr. Gaines would not automatically have allowed the search of his vehicle—citing the Court’s recent decision limiting officer authority to conduct warrantless searches of arrestees in US v. Knapp. The Court also observed that neither the warrant nor the observations arguably amounting to probable cause were discovered until after the challenged seizure. The Court therefore reasoned both the close temporal proximity and the absence of intervening circumstances weighed against application of the attenuation doctrine in this case.

Takeaways

  • Preservation matters. The standard of review is important, and this is another appellate win born of  preservation. Mr. Gaines moved before trial for an order suppressing all evidence derived from law enforcement’s initial seizure of him. The court held an evidentiary hearing on the motion, ultimately denying it. Mr. Gaines reasserted his motion towards the end of trial.  Notably, this belt and suspenders approach is commendable, but the issue was already preserved for appeal. Under  Federal Rule of Evidence 103(b):“[o]nce the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” 
  • Detail matters. Suppression motions often require fact-intensive inquiries, and as this case demonstrates, it’s useful to do everything you can to marshal the facts in your favor. Explain in detail exactly what happened: How many police officers were there? What were they wearing? What were they driving? And what exactly did they do when they encountered the defendant? And then those details to the relevant legal standard.
  • A picture is worth a thousand words. Check out the Opening Brief  in this appeal(filed by the Kansas FPD). Sometimes, it’s useful not only to tell the court why your motion should be granted, but also show them. If there’s an image that really captures the essence of your argument, consider including it in your brief so your point doesn’t get lost in the shuffle. Nobody’s suggesting you file a comic book, but when done right, this technique shakes up legal writing and can be quite effective.
  • Arrest authority is not the end of the story. As the Tenth Circuit’s in-depth attenuation analysis demonstrates, the fact that police could have lawfully arrested your client doesn’t necessarily excuse any Fourth Amendment violations. Pick apart any attenuation argument to see if the Government’s claim holds up: Would an arrest really have led to the discovery of the evidence, independent of the Fourth Amendment violation? And can the warrant really be considered an “intervening event” that weakens the causal connection between the Fourth Amendment violation and the evidence sought to be excluded?

News You Can Use: SCOTUS holds Counsel has Duty to File a Notice of Appeal Despite an Appeal Waiver

In Garza v. Idaho, the Supreme Court recently ruled 6-3 that, if a defendant wants to appeal, defense counsel must always file a notice of appeal — even if the defendant has signed an appeal waiver and even if counsel judges an appeal to be frivolous or self-defeating. The opinion clarifies trial counsel’s obligations during the post-trial period. And the lineup of the Justices is potentially revealing.

Background

Mr. Garza entered into a plea agreement that included a clause stating he “waive[d] his right to appeal.” After sentencing, however, Mr. Garza clearly and repeatedly told his lawyer that he wished to appeal. Trial counsel did not file a notice of appeal, telling Mr. Garza “that an appeal was problematic because he waived his right to appeal.”

Later, Mr. Garza sought post-conviction relief, claiming that trial counsel rendered ineffective assistance by failing to file a notice of appeal despite Mr. Garza’s requests. The Supreme Court’s prior decision in Roe v. Flores-Ortega lent support to Mr. Garza’s claim. The Court had held in Flores-Ortega that trial counsel’s failure to file a notice of appeal when the client requests an appeal amounts to ineffective assistance of counsel. But the Idaho courts denied Mr. Garza’s claim, purporting to distinguish Flores-Ortega on the basis of the appeal waiver in Mr. Garza’s case.

Majority Opinion

The Supreme Court reversed in an opinion authored by Justice Sotomayor and joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Kagan, and Kavanaugh. Assessing the two elements of an ineffective assistance of counsel claim — deficient performance and prejudice — the Court held that, even in the face of appeal waiver, both elements are met when counsel disregards a defendant’s request to file an appeal.

Addressing the deficient performance element, the Court rejected the State’s argument that counsel could strategically decide not to file an appeal for fear of risking a breach of the plea agreement. The Court explained that, first, “simply filing a notice of appeal does not necessarily breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope.” Second, “the bare decision whether to appeal is ultimately the defendant’s, not counsel’s, to make.” The Court noted that defense counsel’s obligation to perform the “purely ministerial task” of filing a notice of appeal did not imply an obligation to file a merits brief in the court of appeals, as defense counsel may move to withdraw from representing the defendant on appeal if the appeal would be frivolous.

Addressing the prejudice element, the Court held that a presumption of prejudice applied because counsel’s deficient performance “forfeit[ed] an appellate proceeding all together,” and there was no principled way to assess the reliability of a proceeding that never took place. An appeal waiver does not show that a defendant has no right to an appellate proceeding, the Court explained, because there are some issues that can always be appealed notwithstanding an appeal waiver — including but not limited to the issue of whether the appeal waiver itself was knowing and voluntary. The Court rejected the federal government’s argument for a case-by-case assessment of whether the defendant planned to raise an issue outside the scope of the appeal waiver as unworkable.

The Dissent

Justices Thomas, Gorsuch, and Alito dissented. Justice Thomas authored the dissent, which Justice Gorsuch joined in full and Justice Alito joined only in part. In the section joined by each of the dissenters, Justice Thomas maintained that a case-by-case inquiry into deficient performance and prejudice should be required. In a more radical section of the dissent, joined only by Justice Gorsuch, Justice Thomas argued that the Sixth Amendment, as originally understood and ratified, “meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel.” Thus, Justice Thomas (and Justice Gorsuch) suggested that landmark decisions reading the Sixth Amendment to require “counsel at taxpayers’ expense” (i.e., Gideon) and to guarantee “effective counsel” (i.e., Strickland) were wrongly decided. At a minimum, Justice Thomas maintained “the Court should tread carefully before extending our precedents in this area.”

 

Takeaways

  • Whether to appeal is up to the client. The defendant’s right to decide whether to appeal his case is a vital procedural protection.While defense counsel may advise the client that an appeal would be pointless, the client’s decision to proceed on appeal controls — just like the client controls other final decisions including whether to plead guilty or go to trial. An  amicus brief filed in the Garza litigation explains why fundamental principles of constitutional law and legal ethics vest the final decision to appeal in the client.
  • If the client wants to appeal, counsel must file a notice of appeal, even if the plea agreement contains an appellate waiver. Defense counsel must always file a notice of appeal when the client expresses the desire to appeal. In Roe v. Flores-Ortega, the Supreme Court held that when an attorney “disregards specific instructions from the defendant to file a notice of appeal,” the attorney has rendered deficient representation, and the defendant should be “presum[ed]” to have suffered prejudice. 528 U.S. 470 (2000). Garza teaches that the existence of an appeal waiver in a plea agreement does not change counsel’s fundamental obligations in this area.
  • Garza resolves a circuit split but doesn’t really change Tenth Circuit law. Since 2005, the Tenth Circuit has applied the rule in Flores-Ortega with equal force where a defendant enters a guilty plea containing an appeal waiver. In U.S. v. Garrett, the Tenth Circuit held that an “[a]ppellate waiver does not foreclose all appellate review” a sentence, and if the defendant “actually asked counsel to perfect an appeal, and counsel ignored the request, he will be entitled to a delayed appeal.”See US v Garrett, 402 F.3d 1262, 1266 (10th Cir. 2005).
  • Of course, you may end up filing an Anders brief. If you think the appeal is frivolous, keep in mind the procedure under Anders v California, 386 U.S. 738, 744 (1967). That is, when a client asks his lawyer to file an arguably frivolous appeal, the lawyer should file a notice of appeal, submit “a brief referring to anything in the record that might arguably support the appeal,” and request permission to withdraw. This procedure, requiring lawyers to file “Anders briefs,” allows defense counsel to act “with honor and without conflict,” and it preserves defendants’ right to appeal. For additional requirements on Anders briefs in the Tenth Circuit, see the Tenth Circuit Rules on the subject, particularly 10th Cir. R. 46.4(B)(1) through (3), and US v Cervantes, 795 F.3d 1189, 1190 (10th Cir. 2015).
  • Don’t just assume an appellate waiver is enforceable. Like it or not, appeal waivers are a part of plea agreements in the Tenth Circuit. But appellate waivers are not absolute and even the broadest waivers can sometimes be challenged. Review the appellate waiver enforcement analysis in US v Hahn, the key case on the issue in the Tenth Circuit, to determine if the appeal falls within the scope of the appellate waiver, if the defendant knowingly and voluntarily waived his appellate rights, or whether waiver will result in a miscarriage of justice.

News You Can Use: Tenth Circuit Limits Officers’ Authority to Search Incident to Arrest

In United States v. Knapp, the Tenth Circuit reversed the denial of a motion to suppress and held a warrantless search of an arrestee’s purse could not be sustained as a search incident to arrest.

Defendant Stacy Knapp was arrested on an outstanding warrant. Police officers seized the purse she was carrying and handcuffed her behind her back. The police walked Ms. Knapp to the police car while they carried her purse.  An officer then put Ms. Knapp’s purse on the hood of the car, about three to four feet away from Ms. Knapp (who was still handcuffed). One officer stood next to Ms. Knapp and two other officers were nearby. After Ms. Knapp admitted there was a gun inside her purse, an officer searched the purse and recovered a pistol.

The Government argued the warrantless search was permissible as a search incident to Ms. Knapp’s arrest. The Tenth Circuit disagreed and held that the search violated the Fourth Amendment.

First, the Court rejected the Government’s argument that the search of Ms. Knapp’s purse amounted to a “search of the person,” which is allowed automatically under United States v. Robinson. The Court held that Robinson should be limited to searches of an arrestee’s clothing — explicitly rejecting authority from other courts that had extended Robinson to apply to searches of handheld containers. The Court explained that searches incident to arrest are justified by the possibility that an arrestee might have a weapon and by the officers’ need to disarm her. In this light, automatic searches of an arrestee’s clothing make sense because separating an arrestee from her clothing to deny her access to any weapon “would be impractical (not to mention demeaning).” But that rationale doesn’t apply to handheld containers like purses, the Court held, because such items are “easily capable of separation from [the] person.”

Second, the Court rejected the district court’s holding that the search of Ms. Knapp’s purse was justified on the ground that she could have accessed it at the time of the search. The Court recognized that, under Chimel v. California, police can search not only an arrestee’s person but also anything else they reasonably believe the arrestee might access to get a weapon or destroy evidence. However, the Court held that, unlike Robinson searches, Chimel searches are not automatic and “must be justified on a case-by-case basis by the need to disarm or to preserve evidence.” Further, the Court held that Arizona v. Gant, which arose in the context of an automobile search, was not limited to that context and required the Court to evaluate “the arrestee’s ability to access weapons or destroy evidence at the time of the search, rather than the time of the arrest, regardless of whether the search involved a vehicle.” Applying Gant and Chimel, the Court held that “it was unreasonable to believe Ms. Knapp could have gained possession of a weapon or destructible evidence within her purse at the time of the search.” Ms. Knapp could not have accessed the contents of her purse, the Court explained, because “not only were Ms. Knapp’s hands cuffed behind her back, [an officer] was next to her, and two other officers were nearby. Moreover, the purse was closed and three to four feet behind her, and officers had maintained exclusive possession of it since placing her in handcuffs.”

Takeaways

  • Preservation matters. This awesome appellate win was born in the district court.  The trial lawyers made a great record, filing a motion to suppress on Fourth Amendment grounds (and later, a reply in support of the motion) and emphasizing the government’s burden to prove that the search and seizure was reasonable.  Because the issue was raised and ruled upon below, the Tenth Circuit applied de novo review on appeal. This favorable standard of review is the result of preservation; and it was the first step on the path to victory.
  • A purse is not a pocket! Searches “of the person” incident to an arrest are allowed automatically, but such searches are limited to searches of the arrestee’s clothing and cannot extend to a search of a handheld container, like a purse.
  • A search of the “grab area” must be justified.  A search of the area within the arrestee’s immediate control (the “grab area”) is not a search “of the person” and must be “justified on a case-by-case basis by the need to disarm or to preserve evidence.”
  • Justification depends on what’s happening at the time of the search, not the time of the arrest.  If, at the time of the search, it isn’t reasonable to believe that an arrestee could access a place or item to destroy evidence or get a weapon, the search of that place or item cannot be justified as a search incident to arrest.