News You Can Use: Tenth Circuit addresses the best evidence rule – and says a lot of other interesting stuff along the way

We read this recent 111-page opinion so you don’t have to. This post is long – though not 111-pages long – and we think it’s worth it.

In United States v. Chavez, a divided panel of the Tenth Circuit issued an epic opinion addressing what is popularly known as the best evidence rule – but which is more accurately called “the original document rule.” That rule, codified in Fed. R. Evid. 1002, provides that “[a]n original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.”

Chavez holds that the prosecution may not introduce an English-language transcript purporting to translate a foreign-language audio recording without also introducing the audio recording itself. And while that is straightforward enough, Chavez goes on to call into question a lot of problematic things that prosecutors sometimes do with transcripts of our clients’ alleged calls and conversations. For appellate lawyers, it also has interesting things to say about harmless-error review. Read on for an explanation of Chavez’s holding, along with takeaways for both trial and appellate lawyers.

Background

Randolfo Chavez was indicted for distributing methamphetamine. The prosecution’s case included three conversations that Mr. Chavez allegedly had with government cooperators, including conversations during two (alleged) controlled buys. The three conversations – which were mostly, but not entirely, in Spanish –  were recorded.

At trial, the prosecution offered into evidence what purported to be transcripts of the recordings, with Spanish and English versions side-by-side. The prosecution did not offer the recordings themselves. Defense counsel objected to the transcripts based on the best evidence rule, insisting that the recordings themselves needed to be offered into evidence. The district court overruled the objection, leaving the jury to rely on the transcripts without the underlying recording.

Chavez appealed, arguing the transcripts were inadmissible under Fed. R. Evid. 1002.

The Tenth Circuit’s Holding

A divided panel agreed with Mr. Chavez and reversed his convictions.

Judge Holmes’s opinion for the Court, joined by Judge Seymour, is characteristically comprehensive. It canvasses the history, purpose, and scope of the best evidence rule, and the opinion could be a good resource for those who need to brush up on the rule and how it is applied in the Tenth Circuit.

Ultimately, the majority opinion reasons:

  1. Under Rule 1002, “evidence offered to prove the contents of an original writing, recording, or photograph is not admissible, unless the original itself is also admitted.” Maj. Op. at 30.
  2. The bar on “secondary evidence of an original’s contents unless the original is in evidence . . . is absolute,” save for certain explicitly stated exceptions. Id. at 32.
  3. The list of exceptions does not include any exception for foreign-language recordings.” Id. at 32-33.
  4. Consequently, “under the plain meaning of Rule 1002, the best-evidence rule does not permit courts to admit English-translation transcripts of foreign-language recordings when the recordings themselves are not also in evidence.” Id. at 33.
  5. The prosecution “sought to prove the contents of the recordings” when it “sought to prove the words purportedly spoken by Mr. Chavez and others,” but it failed to introduce the recordings themselves. Id. at 44.
  6. Therefore, “[t]he district court’s decision to admit the transcripts [of the recordings] . . . plainly flies in the face of the best-evidence rule and was an abuse of the court’s discretion.” Id. at 46.

Although the majority opinion’s reasoning is largely formalistic, it is informed by the concerns underlying Rule 1002. The best evidence rule requires an original to ensure reliability and to guard against the “human error or outright fraud” that secondary evidence of an available original’s contents may involve. Id. at 30-32. And in Mr. Chavez’s case, there were grave concerns about the accuracy of the Government’s transcripts. Id. at 10-18, 62-64.

For example, the side-by-side Spanish-and-English transcript lists the following as equivalent phrases:

Spanish – “Ponte las pinches pilas (unintelligible) . . . .”

English – “I’m like the boss. I’m your boss. I can get you anything you want. I got everything for the next load. It’s for us. Keep doing a good job and instead of Mckleen I’ll be hooking you up.”

“It is unclear,” the Court says, “how four Spanish words plus and ‘unintelligible’ word or phrase translate into thirty-eight intelligible words in English.” Id. at 15-16.

In another example, the transcript lists the following as Spanish-to-English equivalents:

Spanish – “Tenemos que pagarle al otro way . . .

English – “Fucking 19 grams, We have to pay the other guy. Is this your number?”

Id. at 63-64.

The Court cites numerous other inexplicable discrepancies.

The Court’s opinion goes on to reject the Government’s argument that introducing the recordings was not required. The Government had posited that the fact that the recordings were in Spanish altered the analysis because “recordings in a language that jurors do not understand is not the best evidence” of what was said. Id. at 46-47 (quotation marks omitted). Rather, said the Government “the ‘best evidence’ was the translated transcripts.” Id. at 47. The Court explained that this “evince[d] a fundamental misunderstanding of the legal import of the best-evidence rule.” Id. “Despite its somewhat misleading name, the best-evidence rule’s concern is not with the admission of the best evidence in a qualitative sense.” Id. at 48.

Accordingly, the majority opinion squarely holds that courts must admit the original audio of a recording in a foreign language if it is to admit a translated transcript of such a recording.

Or does it…?

Judge Hartz’s Dissent

Judge Hartz dissented, maintaining that “[t]he sin of the trial judge was to use his common sense.” Dissenting Op. at 1. The dissent maintains that (for reasons explored below) trial courts can still admit translated transcripts without also admitting the foreign-language recording itself, based on the dissent’s theory, notwithstanding the majority opinion. Id. at 6.

Judge Hartz’s merits analysis proceeds as follows:

  1. Rule 1002 requires that the original of a writing, recording, or photograph be admitted “‘unless these rules or a federal statute provides otherwise.” Id. at 9.
  2. Rule 703 allows for the admission of expert opinion testimony without the information underlying the expert opinion testimony also being admitted. Id. at 7.
  3. Consequently, expert testimony opinion addressing the contents of a writing, recording, or photograph need not be accompanied by the original of the writing, recording, or photograph, because “Rule 703 provides otherwise.” Id. at 9.
  4. A translation of a foreign-language recording is tantamount to expert opinion testimony. Id. at 6-7.
  5. Therefore, a transcript translating a foreign-language recording may be admitted even if the recording itself is not admitted. Id. at 9-10.

Although Judge Hartz acknowledges that there may be good reasons for admitting the recording itself in a particular case, id. at 18, he maintains that trial courts should have the discretion to exclude a foreign-language recording under Rule 402 or Rule 403 on the ground that it is irrelevant; would waste time; or would confuse or mislead the jury, id. at 10.

Why does Judge Hartz think that trial courts can follow this path despite the majority’s holding? The reason is that the majority opinion, in a footnote spanning three pages, explicitly declines to “engage with the merits of the Dissent’s arguments” on the ground that the Government never argued for anything like the dissent’s theory for admitting the transcripts without the recordings. Maj. Op. at 50-52 n.17. Therefore, Judge Hartz maintains, “trial courts in this circuit . . . are free to adopt [his rationale] if they find it persuasive.” Dissenting Op. at 6. Based on the majority opinion’s holding that exceptions to Rule 1002 are strictly limited, it is questionable whether a future panel of the Tenth Circuit would agree with Judge Hartz that his approach remains viable.

TAKEAWAYS

For Trial Lawyers: Challenging Problematic Transcripts and Other Nuggets

More than the Chavez’s holding regarding the best evidence rule, it’s criticisms of the transcripts the prosecution used in this case are likely to have broad applicability for trial lawyers dealing with such transcripts – even when the prosecution introduces the original.

The majority opinion deems the following aspects of the prosecution’s transcripts “problematic and potentially misleading.” Maj. Op. at 56-59, 61-64 (emphasis added).

  • That the transcripts purported to identify Mr. Chavez as a participant in the conversations, improperly treating Mr. Chavez’s participation “as an established (even stipulated) fact.”
  • That the transcripts identified themselves as transcripts of “controlled buys” of methamphetamine, which was improper “editorial commentary . . . not subject to cross-examination.”
  • That the transcripts purported to attribute incriminating statements to Mr. Chavez.
  • That the transcripts “offer[ed] no indication of who created them, when or how the respective transcribers did so, how much time elapsed between the making of each successive statement within the three transcripts, and whether these exhibits reflect a complete transcription of the underlying recordings,” all of which “make their integrity and soundness questionable.”

The Court was sharply critical of these features of the transcripts, and this section of the opinion provides strong grounds for precluding prosecutors from introducing transcripts with such features under Rule 403, under the hearsay rule, under the Confrontation Clause, or for lack of foundation.

Judge Hartz’s dissent suggests another trial-practice tactic. In a point not addressed by the majority opinion, and for reasons we won’t go into here, Judge Hartz argues at length that it is improper for trial judges to declare in front of a jury that a witness is qualified to give expert testimony. Dissenting Op. at 31-35. He provides extensive persuasive authority for the point. And he states that, although the Tenth Circuit “has not prohibited trial judges from declaring in open court that a witness is an expert,” “perhaps we should.” Id. at 35.

Even if telling the jury that a witness is an expert would not be reversible error, Judge Hartz’s opinion is a good resource for arguments that a trial court should refrain from doing so as a matter of discretion.

For Appellate Lawyers: Rebutting Harmless-error Arguments  

Several aspects of the majority’s harmless-error analysis (it finds the error not harmless) should be useful in other appeals:

  • The majority emphatically distinguishes harmless-error analysis from sufficiency-of-the-evidence analysis and emphasizes that the credibility of witnesses is up for grabs when harmless error, rather than sufficiency, is at issue. Maj. Op. at 69-71.
  • It analyzes prejudice by assuming that neither the transcripts nor the underlying recordings would have been admitted, rather than assuming that both the transcripts and the underlying recordings would have been admitted. Id. at 65.
  • It posits that, in assessing harmless error, it is appropriate to think about “the evidence that [the prosecution] did not produce” – in this case, evidence like photographs of Mr. Chavez participating in the controlled buys. Id. at 66-69.
  • It says that a prosecution case is “not strong” when it rests primarily on the testimony of government cooperators who expected benefits. Id. at 66, 69-70.

News You Can Use: Tenth Circuit reverses imposition of terrorism sentencing enhancement-U.S.S.G. § 3A1.4

In United States v. Ansberry, the Tenth Circuit, in a case of first impression, reversed the imposition of the terrorism sentencing enhancement—U.S.S.G. § 3A1.4—that added a whopping 12 levels to the defendant’s offense level and boosted his criminal history category from I to VI.

The background facts

              In 1971, David Ansberry, then 19 years old, moved to Nederland, Colorado and fell in with a group of “hippies.”  One of the group members, Guy Goughnor, got rowdy in a bar one night and was escorted out by Town Marshal Renner Forbes.  Mr. Goughnor was never again seen alive and his body was later found in a remote canyon.  He had been shot in the head.  The Boulder County Sherriff’s Department suspected Forbes but was unable to build a case and never brought charges.  But 25 years later, Forbes confessed and was convicted of manslaughter.  He was sentenced to probation.

              By then, Mr. Ansberry had long since moved on from Nederland. But in 2016 he returned to avenge his friend’s death.  At around 5 am one morning, Mr. Ansberry placed a would-be homemade bomb – consisting of (among other things) a light bulb, a cell phone, and an explosive powder called HMTD – outside the police department.  The bomb was supposed to go off when Mr. Ansberry called the phone, but it didn’t work.  After trying unsuccessfully to detonate the device, Mr. Ansberry skipped town, leaving the defective bomb in front of the police department.  Officers found it hours later.  Using a robot, they swung it around and dropped it on the pavement, but the bomb wouldn’t go off.  They finally got it to detonate by firing a steel slug at it.   

The federal prosecution and the sentencing objections

              The government charged Mr. Ansberry with one count of using or attempting to use a weapon of mass destruction against a person or property.  Mr. Ansberry pleaded guilty without a plea agreement.  He admitted only to attempting to use a destructive device against property, not a person, when he attempted to set off the bomb early in the morning.

              Mr. Ansberry raised numerous objections at sentencing. Among other things, counsel objected to a three-level, official-victim enhancement (U.S.S.G. § 3A1.2) and also to a terrorism enhancement (U.S.S.G. § 3A1.4).  Together, these two enhancements dramatically increased his guidelines range from 41-51 months, to 324-405 months. The district court overruled the objections and sentenced Mr. Ansberry to 324 months—or 27 years—imprisonment.

The appeal

Mr. Ansberry appealed, and the Tenth Circuit vacated the sentence.  Judge McHugh, writing for a panel that included Circuit Judges Lucero and Eid, found the district court made two reversible mistakes.

              First, the Tenth Circuit held the official-victim enhancement should not have been applied. The district court had applied the enhancement on the theory that Mr. Ansberry had victimized the officers who discovered the defective bomb hours after he had tried to detonate it. But although leaving the bomb for others to find may have constituted relevant conduct within the meaning of the guidelines, the official-victim enhancement – unlike nearly all others – requires that an official be victimized by the conduct comprising the “offense of conviction,” that is, the conduct that satisfies the elements of the offense.  And here, Mr. Ansberry had pleaded guilty only to attempting to damage property, which occurred only during the several minutes he tried unsuccessfully to set off the bomb.

              Second, the Tenth Circuit found that the district court erred in imposing the terrorism enhancement that so drastically increased Mr. Ansberry’s guideline range. The district court had found that the enhancement applied because Mr. Ansberry’s offense was, in the words of the guideline, “calculated to retaliate against government conduct.”  Counsel below had argued that, whatever Mr. Ansberry thought he was doing, he wasn’t retaliating against government conduct because Town Marshal Forbes had not been acting as a government official when he murdered Mr. Ansberry’s friend.  The district court refused to make a finding one way or another on this because, in her view, all that mattered was Mr. Ansberry’s subjective belief that he was retaliating against government conduct.  Mr. Ansberry argued that this was wrong – that the enhancement could only be applied if the conduct Mr. Ansberry was retaliating against was objectively governmental in nature.  Again, the circuit agreed.

Takeaways

  1. Preserve, preserve, preserve! Mr. Ansberry’s lawyers meticulously raised and preserved each of the challenges to his guidelines calculations.  Thanks to this careful lawyering, Mr. Ansberry didn’t face the hurdle of overcoming the plain-error standard on appeal.  Even if the district court isn’t persuaded by your arguments, the Tenth Circuit may be.
  2. Pay attention to the plain language of the guidelines.  Ultimately, both successful arguments came down to the plain language of the guidelines—what is the “offense of conviction,” and what does it mean to “retaliate against government conduct”? Especially when you are dealing with less-common guideline provisions, consider whether the plain language really applies to your client’s case.

News You Can Use: Tenth Circuit Will Hear Argument Today (at 2 p.m.) In A Noteworthy Compassionate Release Appeal

The Tenth Circuit will hear oral argument today September 22, 2020 at 2 p.m., in United States v. Maumau, No. 20-4056, a government appeal out of the District of Utah with potential implications for compassionate release litigation throughout the circuit. The issue is whether the district court has authority to determine for itself what constitutes an “extraordinary and compelling reason” that would justify compassionate release under 18 U.S.C. § 3582(c)(1)(A), notwithstanding the BOP and the Sentencing Commission have promulgated definitions.  The case concerns both the language of Section 3582(c) and the validity of USSG 1B1.13, as well as its commentary. Former federal district court judge John Gleeson represent Mr. Maumau.  You can learn more about Judge Gleeson here: https://www.debevoise.com/johngleeson                   You can listen to the argument in real time on the circuit’s YouTube channel by clicking here:https://www.youtube.com/watch?v=IaR1ZYqvC4A                                  Audio recordings of the arguments can be found on the circuit’s website – with a time lag of about two days – by clicking here: https://www.ca10.uscourts.gov/oralargument/search/recent

The appellate briefs and district court order are available here:

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: SCOTUS holds officers have reasonable suspicion to stop a car if the owner has a revoked license

In Kansas v. Glover, the Supreme Court considered the narrow question “whether a police officer violates the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner has a revoked license.”  Kansas v. Glover, No. 18-556, 2020 WL 1668283, at *2 (U.S. April 6, 2020). The Court held that “the stop is reasonable,” unless the officer learns “information negating an inference that the owner is the driver of the vehicle.” Id.

The case essentially came down to whether, in the context of an investigative detention based on reasonable suspicion, an officer can infer that the owner is the person driving the car, even though their license has been revoked.  An eight-judge majority concluded that inference was reasonable.

The majority began with the premise that it is reasonable to infer that a car’s owner is the one driving, and under the circumstances here, no evidence rebutted that reasonable inference.  “The fact that the registered owner of a vehicle is not always the driver of the vehicle does not negate” that inference because the “reasonable suspicion inquiry ‘falls considerably short’ of 51% accuracy.”  Id. at *3.  Neither does the fact that the owner’s license was revoked negate it because, according to the Court, common sense and statistics demonstrate that drivers with revoked licenses often continue to drive.  Moreover, under Oklahoma’s license revocation scheme, only “drivers who have already demonstrated a disregard for the law or are categorically unfit to drive” may have their license’s revoked. Id. at *4. Thus, it is not unreasonable to infer that they may continue to drive in violation of the law.

The majority rejected Justice Sotomayor’s concerns in her dissent that the Court was doing away with the requirement that reasonable suspicion be based an officer’s training and experience rather than data and probabilities.  The majority countered that officers may apply common sense, not only expertise, and that reliance on data-driven probabilities is wholly appropriate (although, relying “exclusively” on probabilities might not be).

Finally, the Court “emphasize[d] the narrow scope of [its] holding.”  Id. at *5. Not only is the holding limited to revoked licenses (as opposed to suspended licenses), but the inference that the owner is driving can be easily rebutted.  “For example, if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the circumstances would not ‘raise a suspicion that the particular individual being stopped is engaged in wrongdoing.’” Id.

TAKEAWAYS

  • This decision does not change Tenth Circuit law.  The Tenth Circuit, in a decision by then-circuit-judge Gorsuch, has already held that an officer has reasonable suspicion to stop a vehicle where a database indicates the owner does not have insurance, notwithstanding that the non-owner driver might be independently insured.  See United States v Cortez-Galaviz, 495 F.3d 1203, 1207-08 (10th Cir. 2007) (“[C]ommon sense and ordinary experience suggest that a vehicle’s owner is, while surely not always, very often the driver of his or her own car.”).  And, at least one district court has relied on Cortez-Galaviz to find reasonable suspicion to stop a car where the owner had their license revoked, which was the fact pattern in GloverSee United States v Wissiup,2013 WL 4430872, at *4 (D. Utah Aug. 16, 2013).
  • The holding is narrow.  Officers may stop cars if the owner has a revoked license, unless they have reason to believe that someone other than the owner is driving (for example they look different, or the non-owner driver shows their ID).
  • And the result appears to depend on the state’s particular statutory scheme. The holding is at least somewhat dependent on Oklahoma’s scheme allowing revocation for only relatively serious offenses.  Thus, in another state where revocation could be based on more minor conduct, an officer may not be able to infer that the owner is driving on a revoked license.

News You Can Use: Recent developments in home confinement in the age of COVID-19

The number of positive-COVID-19 cases in the BOP continues to rise.

As of this morning the BOP reports  138 inmates and 59 staff have tested positive for the virus. The BOP updates this data every afternoon.

On March 26, 2020, Attorney General Barr issued a memorandum to the Director of BOP, outlining a new policy by the United States Department of Justice to deal with confined inmates who are most vulnerable to the COVID-19 virus.  Barr directed BOP to use home confinement “where appropriate, to protect the health and safety of BOP personnel and the people in our custody.” 

Despite that step, barriers remained to release.

On April 1, 2020, the Federal Public & Community Defenders Legislative Committee wrote a letter to AG Barr and urged him to exercise his authority under the CARES Act to allow the BOP to transfer more people to the “relative safety of home confinement.”

On April 3, 2020 (after 7 deaths in BOP custody and uncontained spread in multiple facilities), AG Barr made a CARES-Act finding that “emergency conditions are materially affecting the functioning of the Bureau of Prisons.” He told the BOP to review all inmates with COVID-19 risk factors, starting with FCI Oakdale, FCI Danbury, and FCI Oakton (and “similarly situated” facilities), and to transfer “suitable candidates for home confinement” to home confinement.

The memo directs the BOP to “be guided by the factors in [Barr’s] March 26 Memorandum,” which drastically limits the number of people prioritized for home confinement.  But it also says all inmates with “a suitable confinement plan will generally be appropriate candidates for home confinement rather than continued detention at institutions in which COVID-19 is materially affecting their operations.”

On April 5, 2020, the BOP issued a press release responding to AG Barr’s April 3 memorandum.  BOP says it is reviewing all inmates to determine which ones meet the criteria established by the Attorney General.  While inmates do not need to apply to be considered for home confinement, any inmate who believes they are eligible may request to be referred to Home Confinement and provide a release plan to their Case Manager.

TAKEAWAYS

If you have a client who might be a candidate for home confinement, don’t wait for the BOP to identify them.  Now is the time to figure out a release plan and bring eligibility to the attention of the Case Manager.

The BOP is using the eligibility criteria established by AG Barr as a benchmark for home-confinement determinations:

(1) The age and vulnerability of the inmate to COVID-19;

(2) The security level of the facility;

(3) The inmate’s conduct in prison;

(4) The inmate’s score under PATTERN;

(5) The inmate’s release plan; and

(6) The inmate’s crime of conviction and assessment of danger posed to the community.

But remember that list of criteria is not exhaustive; the BOP must consider the “totality of the circumstances.”

Inmates deemed suitable for home confinement must be immediately processed for transfer out of BOP, but there is still a required 14-day quarantine before the transfer can happen.  Note that AG Barr (in the April 3 memorandum) gave the BOP discretion “on a case-by-case” basis to allow an inmate to quarantine outside the BOP facility “in the residence to which the inmate is being transferred.”

 

 

News You Can Use: SCOTUS clarifies ACCA’s “serious drug offense” definition

In Shular v. United States, the Supreme Court held that “serious drug offense” in 18 U.S.C. § 924(e)(2)(A)(ii) requires only that the state offense involve the conduct specified in the statute; it does not require that the state offense match generic offenses. A prior state law conviction qualifies so long as, under the categorical approach, it necessarily “involves manufacturing, distributing, or possessing with intent to manufacture or distribute” a federally controlled substance. Therefore, the defendant’s prior conviction was a “serious drug offense” notwithstanding his assertion it was broader than the generic definition because it did not require knowledge that the substance possessed was illicit. Shular v. United States, No. 18-6662, 2020 WL 908904 (U.S. Feb. 26, 2020).

Background on ACCA and the categorical approach

Felon in possession of a firearm usually carries a statutory maximum sentence of 10 years in prison. 18 U.S.C. § 924(a)(2). However, the Armed Career Criminal Act (ACCA) provides a 15-year mandatory minimum sentence where the defendant has three previous convictions for a “violent felony” or “serious drug offense.” 18 U.S.C. § 924(e). To determine whether a defendant’s prior conviction qualifies as an ACCA predicate, courts must apply the “categorical approach.” That is, they look only at the elements of the prior offense (not the defendant’s actual conduct) and determine whether those elements categorically qualify as a violent felony or serious drug offense. See generally Mathis v. United States, 136 S. Ct. 2243 (2016).

Most of the Supreme Court’s jurisprudence on predicate offenses and the categorical approach involves ACCA’s definition of “violent felony,” which can be satisfied in one of two ways: (1) under the “force” or “elements” clause, it means any offense that “has as an element the use, attempted use, or threatened use of physical force,” or (2) under the “enumerated offenses” clause, it means any offense that “is burglary, arson, or extortion.” 18 U.S.C. § 924(e)(2)(B). A “serious drug offense” includes most federal drug offenses and any state offense “involving manufacturing, distributing, or possessing with intent to manufacture or distribute” a federally controlled substance. Id. § 924(e)(2)(A) (it also must be punishably by at least 10 years in prison).

The Supreme Court has held that the enumerated offenses clause refers to the contemporary, generic version of that offense; that is, the definition used by most state codes. Thus, for example, after analyzing state codes and criminal treatises, the Supreme Court determined that the generic definition of burglary is “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598 (1990).

Shular

In Shular, the defendant argued that the definition of “serious drug offense” referred to the names of drug-related crimes in the same way that the definition of violent felony refers to burglary, arson, and extortion. For example, “possession with intent to distribute,” while descriptive, is also just the shorthand name of that offense. Mr. Shular also argued, most states’ drug offenses require a mens rea element that the defendant must know that the substances involved are illicit; therefore, that mens rea must be part of the generic definition implicitly referenced in the ACCA’s definition of “serious drug offense.” Mr. Shular’s offense of conviction, however, did not have that mens rea. It was therefore broader than the generic definition and did not qualify as a “serious drug offense.”

The government argued that the definition of “serious drug offense” was not referring to the names of offenses; rather it was describing what conduct must be proscribed by the state statutes to qualify as a predicate. In other words, it was more like the violent felony definition’s “elements” clause than the “enumerated offenses” clause. Under this interpretation, no inquiry into the mens rea of the generic definition of any drug offense is required—Mr. Shular’s prior conviction qualified because it necessarily involved: (1) manufacturing, distributing, or possessing with intent to manufacture or distribute; and (2) a federally controlled substance.

In a unanimous decision, the Supreme Court agreed with the government. It found compelling two features of the definition, particularly when compared against the definition of “violent felony.” First, the Court thought that the definition of “serious drug offense” was more descriptive and would be “unlikely names for generic offenses.” Burglary, arson, and extortion, on the other hand, unambiguously name offenses and therefore refer to the generic definitions of those offenses. Second, the “serious drug offense” definition spoke of offenses that involve manufacturing or distribution, which again suggested that they were descriptive terms identifying conduct, not generic offenses. Had Congress intended to refer to generic offenses, it would have used the term “is,” not “involving,” as it did in the violent felony definition. Because the statute uses the term “involving” followed by descriptive conduct, it is not referring to the generic definition of, for example, a “manufacturing” offense.

Basic Takeaways

  • The categorical approach applies to the ACCA’s definition of “serious drug offense.”
  • “Serious drug offense” does not enumerate offenses that must be given their generic definitions.
  • A prior conviction is a “serious drug offense” so long as it necessarily involves manufacturing, distributing, or possessing with intent to manufacture a federally controlled substance—regardless of any potential overbreadth with another element of the generic definition, such as mens rea.
  • It is more like the “force” clause in violent felony than it is the enumerated offenses clause.

Other Implications; Potential Future Arguments

  • A “serious drug offense” still must categorically involve a federally controlled substance, so arguments that state schedules are overbroad are still valid. Cf. Mellouli v. Lynch, 135 S. Ct. 1980, 1989-91 (2015)
  • Arguments that a statute is overbroad because it applies to “offers to sell” should likewise still be valid because they do not categorically involve distributing or possessing with intent to distribute. See United States v. Madkins, 866 F.3d 1136 (10th Cir. 2017); United States v. McKibbon, 878 F.3d 967 (10th Cir. 2017).
  • Inchoate crimes might be ripe to challenge again. The Tenth Circuit’s prior justification for including inchoate crimes is that it “read[s] the ‘involving manufacturing’ language broadly to include attempts to manufacture or conspiracy to manufacture.” United States v. Trent, 767 F.3d 1046, 1057 (10th Cir. 2014). However, in Shular, the parties agreed “that ‘involve’ means ‘necessarily require.’” Shular, 2020 WL 908904, at *5. This narrower definition potentially undermines the Tenth Circuit’s justification for expanding the definition of “serious drug offense” to inchoate crimes.
  • More arguments may come to light as the impact of Shular becomes more clear in the coming months, so be on the lookout for updates.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

News You Can Use: Tenth Circuit reaffirms that restitution must be based on the offense of conviction, not relevant conduct.

The Mandatory Victim Restitution Act authorizes restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction.  United States v. Mendenhall, 945 F.3d 1264 (10th Cir. 2019).

Restitution can be an afterthought at sentencing.  The parties are, understandably, far more concerned with incarceration.  However, appropriately limiting restitution is important because a large restitution order can follow a client for 20 years and make it difficult for them to get back on their feet, and stay there.  See 18 U.S.C. § 3613.

As the Tenth Circuit has recognized, “The most important thing at sentencing is determining whether the defendant will be incarcerated and, if so, for how long. Other matters, such as restitution and conditions of supervised release, are, appropriately, of secondary concern. But they are not inconsequential and deserve focused attention.” United States v. Martinez-Torres, 795 F.3d 1233, 1234 (10th Cir. 2015)

Recently, in United States v. Mendenhall, the Tenth Circuit reiterated a fundamental aspect of restitution under the Mandatory Victim Restitution Act (MVRA): a district court can order restitution only to a victim of an offense of conviction, and “only for loss caused by the specific conduct that is the basis of the offense of conviction.”  Mendenhall, 945 F.3d at 1267.

In Mendenhall, an indictment charged the defendant with unlawful possession of three specific stolen firearms, each identified by serial number.  The firearms were stolen from a pawnshop during a burglary in which a total of 62 firearms were stolen, and substantial evidence implicated Mendenhall in the burglary.  Only a dozen or so firearms, including the three identified in the indictment, were recovered and returned to the pawnshop.

The district court ordered Mendenhall to pay the pawnshop restitution in the amount of $33,763.23 for “the loss of firearms not recovered, wages for employees to conduct inventory, loss of revenue for closing of business . . . and cleanup/repairs.”  Id. at 1266.  Mendenhall did not object to the restitution order.  On plain error, the Tenth Circuit reversed.

The Tenth Circuit explained that “[d]istrict courts lack inherent powers to order restitution.”  Id.  They may only do so as authorized by statute, and the MVRA authorizes restitution only to “a person directly and proximately harmed as a result of the commission of an offense.”  Id. (quoting 18 U.S.C. § 3663A(a)(2)).  Moreover, the Supreme Court has interpreted this language as limiting restitution “only for losses caused by the conduct underlying the offense of conviction.”  Id. at 1267 (quoting Hughey v. United States, 495 U.S. 411, 416 (1990)).  Based on these limitations, Mendenhall did not owe any restitution at all.

The elements of Mr. Mendenhall’s offense of conviction were: (1) knowing possession of the firearms; (2) interstate commerce; and (3) knowing or having reasonable cause to believe the firearms were stolen.  “None of these elements caused the losses cited as the basis for the restitution order” because the “three firearms listed in the indictment were recovered and returned.”  Id. at 1268.  That Mendehall did not object to the PSR’s assertion that he was involved in the burglary was irrelevant: “Restitution must be based on the offense of conviction, not relevant conduct.”  Id. (quoting United States v. Frith, 461 F.3d 914, 916 (7th Cir. 2006)).

Finally, the Tenth Circuit panel was reluctant to find that the fourth prong of the plain error test was met—that is, whether the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings”—calling it “not an easy question in a case like this one where everybody knows that Mendenhall stole the firearms and pocketed the cash from the theft.”  Id. at 1270.  However, it acknowledged that a restitution order that exceeds the amount authorized by statute “amounts to an illegal sentence,” just as a term of imprisonment above the stat max does.  Accordingly, the Tenth Circuit was bound by precedent to conclude that all four prongs of plain error were met, and it reversed the order of restitution.

Takeaways

  • Restitution can be very burdensome for our clients.
  • Because restitution is a secondary concern for everyone—the defense, the government, probation, and the court—the orders often contain errors.
  • Restitution can be ordered only for loss caused by the specific conduct that is the basis of the offense of conviction. In other words, restitution must be based on the offense of conviction, not relevant conduct.
    • Caveat: in a plea agreement, a defendant can agree to restitution beyond what is otherwise authorized by statute.
  • An excessive restitution order is an illegal sentence

News You Can Use: Tenth Circuit limits the unit of prosecution for child pornography possession offenses

Holding: Multiple devices ≠ multiple counts: child pornography discovered at the same time, and in the same place, is a single offense, regardless of how many devices that material is stored on.

This fall, the Tenth Circuit limited the number of charges the government can bring for possessing child pornography, at least where that material is discovered at the same time and same place.

In United States v. Elliott, 937 F.3d 1310 (10th Cir. 2019), the defendant was charged with four possession counts, in violation of 18 U.S.C. § 2252A(a)(5)(B), which penalizes “possess[ing]” . . . any . . . material that contains an image of child pornography.”  The charges were based on child pornography discovered on a computer, external hard drive, phone, and cloud storage account linked to the phone.  All the items were located in the defendant’s bedroom during execution of a search warrant.

The government’s theory was that it could charge on a “per device” basis, i.e., that every device on which child pornography was located constituted a separate offense.  The defendant argued that this charging theory was multiplicitous: that it imposed multiple punishments for the same offense of simply possessing child pornography.

To answer the question, the court of appeals had to determine what the unit of prosecution was for § 2252A.  This is an inquiry of statutory interpretation—the unit of prosecution is the minimum amount of activity a defendant must undertake to commit each new and independent violation of a criminal statute. 

Ultimately, the Tenth Circuit held that § 2252A(a)(5)(B) does not permit multiple possession charges based solely on the number of electronic devices a defendant simultaneously possessed. That means that child pornography discovered at the same time, and in the same place, is a single offense, regardless of how many devices that material is stored on.  And because multiplicity is never harmless error, the Elliott court vacated all but one the defendant’s possession convictions.

Open question: whether the government might be able to sustain multiple possession charges with proof that a defendant received the child pornography at different times, or stored it in entirely separate locations.

Key takeaways.

  • Be on the lookout for multiplicity.  Whenever an indictment charges multiple violations of the same statute, be sure to ask what the unit of prosecution is for that statute.  If it is unclear, query whether lenity may apply.  Elliott and the Tenth Circuit’s en banc decision in United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015) are good places to start your research.
  • Don’t let other circuits’ decisions prevent you from making novel arguments.  Here, the Fifth Circuit previously had accepted the government’s “per device” charging theory, and at least four other circuits had suggested in dicta that such charging might be permissible.  The Tenth Circuit found none of this authority persuasive in ruling the other way.
  • The unit of prosecution for child pornography possession under § 2252 is an open question, but it should be the same as § 2252A.  There are two federal statutes that independently criminalize possessing child pornography:  18 U.S.C. § 2252A(a)(5)(B) and § 2252(a)(4)(B).  And while § 2252 is charged less frequently, it still shows up from time to time.  Elliott’s analysis applies only to § 2252A, but its discussion of § 2252 and the slight difference in wording between the two statutes should be helpful in arguing that the unit of prosecution under of § 2252 is the same as § 2252A.

News You Can Use: Tenth Circuit issues helpful decision limiting restitution in conspiracy cases

The Tenth Circuit recently issued an important decision in United States v Anthony concerning restitution in conspiracy cases. The facts are unlikely to reoccur very often, but the opinion contains some broadly applicable and helpful points of law.

Background

Mr. Anthony was convicted after trial of conspiracy to entice a child.  The evidence showed that he called an “escort service” which sent two minors to his place of business. He touched them both and had sex with one of them.  The girls had been ensnared by a pimp, and Mr. Anthony was one of over a hundred customers they had seen.

In ordering restitution, the district court held Mr. Anthony accountable for all the harm the girls suffered during the time they spent working for the pimp.  One of the girls had earlier been involved with another pimp in an enterprise wholly unrelated to the later one.  The court made no attempt to disaggregate the harm caused during the girl’s involvement with the first pimp from the harm caused during her involvement with the second.

The Decision

18 U.S.C. § 2259 generally requires proof of “but for” causation

Mr. Anthony’s first claim on appeal was that the district court should have disaggregated the harm caused during the first enterprise.  The circuit agreed.  And along the way, it ruled that 18 USC 2259, the statute governing restitution for most federal sex crimes, requires a showing of “but for” causation.  In doing so, the court rejected the government’s claim that the statute allowed liability based on a theory of multiple independent causes, which would have greatly expanded restitution liability.  Using but for causation–a familiar concept in restitution analysis generally–resolution of the claim was easy.  Mr. Anthony was obviously not a but for cause of the harms that were caused before his crime was even committed.

Restitution is limited to the harm established by the trial evidence

Mr. Anthony’s second claim was that the court shouldn’t have held him accountable for all the harm that happened during the time the girls were involved with the second pimp.  This argument rested on conspiracy law.  Conspiracy, of course, is an agreement, and he argued that his only agreement, if any, was to have sex with the girls on that one night.  The circuit also agreed with this argument (although Mr. Anthony ultimately lost because the claim wasn’t preserved).  The circuit had long held that a conspiracy conviction makes a defendant “liable in restitution for all losses that proximately result from the conspiracy itself, including losses attributable to coconspirators.”  And historically, the court had looked to the indictment to define the scope of the conspiracy and hence a defendant’s restitution liability.   But here the court held, at least in the case of a trial, that restitution has to be limited to what the evidence actually proved, not what was alleged in the indictment. 

Conspiracy liability is limited to the defendant’s own agreement

Here, the evidence only showed, at most, that Mr. Anthony joined a conspiracy to obtain the girls for sex on the night he met with them.  The reason?  Mr. Anthony’s sole purpose was to “have sex.”  Although he likely knew that his decision to pay for sex furthered the overall enterprise, that knowledge was not enough to make him a conspirator in that enterprise.  As the circuit put it, “mere knowledge” that his actions furthered an illegal enterprise, even in conjunction with his participation in a small part of the enterprise, doesn’t by itself establish that Anthony “joined in the grand conspiracy.”  Id. 

Key Takeaways

  • Be sure to take a careful look at restitution in sex offense cases.  Except child pornography crimes, Anthony teaches that restitution in the sex offense context is limited to harm that would not have occurred but for the defendant’s offense.
  • The evidence, not the indictment, controls, at least when there’s a trial. Restitution is limited to harm established by the evidence at trial, even if the indictment’s allegations are broader.
  • Traditional concepts of conspiracy liability apply in the restitution context. Conspiracy liability (including for restitution) is limited to the defendant’s own agreement, even if she knows of the wider conspiracy.