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Procedure Talks, Substance Walks – Update for June 1, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DOES INNOCENCE MATTER? NOT MUCH.

I had a recent email exchange with a guy who, years after his conviction, believes he has the golden bullet to convince his judge that he should be allowed to withdraw his plea. When I pointed out he had no procedural route for raising the argument, given that he’s known about the issue for years, he responded that all he has to do is convince the judge of the righteousness of his claim, and the procedure will take care of itself.

innocent210504But procedure never takes care of itself. That is to say, procedure rules over substance. Years ago, Professor Henry J. Friendly complained that habeas corpus procedure had gotten so hidebound that a petitioner’s claim that he or she was actually innocent simply didn’t matter. The title of the law review article said it all: Is Innocence Irrelevant: Collateral Attack on Criminal Judgments. Even after Friendly’s now-famous 1970 article, the Supreme Court was unable to untether actual innocence from procedure: in Herrera v. Collins, it held that “a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.  In other words, a prisoner who is actually innocent must show a constitutional violation to obtain relief.  As dissenting Justice Blackmun complained, the only principle this position espouses is “the principle that habeas relief should be denied whenever possible.”

Two cases this week reminded the defendants that the righteousness of their causes paled in significance next to the “angels-on-the-head-of-a-pin” arguments over procedure. In an 11th Circuit case, Sandchase Cody (we’ll call him “Sandy”) initially won his § 2255 motion, having proven to the sentencing court that some of his prior state convictions should not count as Armed Career Criminal Act predicates.

But his victory turned to ashes at resentencing. Initially, Sandy had been sentenced to 294 months for drug distribution and a concurrent 294 months for the ACCA charge. But instead of resentencing on both counts, the judge merely cut his ACCA count to 120 months – the statutory max without the ACCA – keeping the 294 months on the drug count.

angels170726“Unfair!” Sandy cried, apparently laboring under the misappreciation that fairness actually mattered. He appealed, arguing he should have been resentenced on both counts. But because the appeal only challenged the resentencing, not his favorable § 2255 decision, Sandy did not ask for a certificate of appealability (COA). He argued to the 11th Circuit that because he was appealing the new sentence – and not the § 2255 decision vacating the prior sentence – a COA was not necessary.

Background: Under 28 USC § 2253, a prisoner may not appeal a “final order in a proceeding under § 2255” unless a circuit justice or judge issues a certificate of appealability, finding that reasonable judges could debate whether the prisoner’s claim has merit. The intent of the COA procedure is to reduce frivolous appeals, just another way that the Antiterrorism and Effective Death Penalty Act has strangled habeas corpus.

Last week, the 11th Circuit dismissed Sandy’s appeal, holding that the COA requirement applies “not only to an appeal from the final order in a proceeding under section 2255 but also to an appeal from an amended criminal judgment, to the extent it raises section 2255 issues.” By contrast, the Circuit said, direct appeal matters that arise after the § 2255 proceeding — for example, an argument that the district court misapplied the sentencing guidelines at a prisoner’s resentencing — do not require a COA. But Sandy complained in his appeal that § 2255 required he get a complete resentencing, not just a resentencing on one count. That was an argument, the 11th said, over the remedies authorized by § 2255. Thus, it was a § 2255 appeal, and it required a COA.

It seems a trifling point, but procedure prevented his argument from being heard.

In the 6th Circuit, on the other hand, the appeals court ruled that a piece of arcane procedure worked for Edres Montgomery. Edres got resentenced under First Step § 404, the retroactive Fair Sentencing Act. But at resentencing, everyone – including Edres’s lawyer – assumed Edres’s Criminal History range was VI (that’s “6” for the Latin-challenged among us).

But it was only a V (that’s a “5”), Edres discovered afterward, so he appealed. The government argued Edres waived his right to appeal it by not objecting at sentencing. This gave the 6th a chance to expound on waiver, forfeiture, and invited error.

A “defendant can only waive a right that he knows of and actively abandons,” the 6th said. When a claim is waived, it is unappealable. “Forfeiture is at the other end of the spectrum… the passive failure to make a timely assertion of a right.” If a defendant forfeits a claim, “Federal Rule of Criminal Procedure 52(b) allows us to consider such unpreserved arguments for plain error.”

errorA160425In the middle is “invited error”, where the defendant contributes in some way to the district court’s error without intentionally relinquishing his rights. Here, Edres invited the error when his own lawyer agreed Edres’s Criminal History was VI. This left Edres “more responsible for the district court’s error than when he merely forfeits an argument, but he had not made the conscious choice to waive the argument.” Thus the appeals court said, “the consequences fall in between those for forfeiture and waiver… [and while] we do not review invited errors as a matter of course, but we are also not foreclosed from reviewing them; instead, we review for plain error when “the interests of justice demand” it.

The Court said that under a Rule 52 “plain error” analysis, the mistake should be corrected.

United States v. Cody, Case No. 19-11915, 2021 U.S. App. LEXIS 16019 (11th Cir. May 28, 2021)

United States v. Montgomery, Case No. 20-1201, 2021 U.S. App. LEXIS 15382 (6th Cir. May 24, 2021)
– Thomas L. Root

Supreme Court and the Gimme Gimmes – Update for December 5, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREME COURT HEARS TWO CONSEQUENTIAL CASES

The Supreme Court heard oral arguments last week on forfeiture and whether someone screwed up in leaving a big chunk of Oklahoma as Indian Country.

gimmee181205Tyson Timbs, an Indiana man who lost his 2012 Land Rover after he pleaded guilty to drug charges. The state argued that it could seize the car because it had been used to transport drugs, but Tyson countered that requiring him to forfeit the $42,000 car – which he had bought with inheritance money – would violate the 8th Amendment’s ban on excessive fines, because the value of the vehicle was nearly four times the maximum fine that could have been imposed. The question before Court in Timbs v. Indiana was simply whether the 8th Amendment’s prohibition of excessive fines applies to the states at all.

The justices appeared to agree that it does. However, there is wide disagreement on what kind of forfeiture is excessive. Federal defendants can hope for the Court to define when forfeiture is too much, but observers think that the justices are likely to say that excessive fines clause applies to the states, but not much more.

Carpenter v. Murphy asked whether a large part of eastern Oklahoma, including where Patrick Murphy is alleged to have committed murder and the entire City of Tulsa, still lies within the borders of a reservation granted to the Creek Nation when it was forcibly relocated to the Oklahoma Territory in the early 19th century. If so, then Oklahoma had no jurisdiction to try Murphy: The Major Crimes Act would give exclusive jurisdiction over that murder to federal authorities, because Murphy is a Native American. The formal procedures that Congress followed when it organized the state of Oklahoma did not explicitly terminate the reservation on which the crime occurred. Because the Supreme Court’s earlier cases have emphasized the importance of statutory language explicitly terminating a reservation, the lower court concluded that the reservation remains in place.

The case is important to a number of federal defendants, whose prior convictions could be wiped out, affecting not only ACCA convictions and 21 USC 851 drug enhancements, but Guidelines criminal histories as well.

indian181205The Court is clearly grappling with the law that plainly makes eastern Oklahoma Indian Country versus the wholesale dislocation that upholding the Tenth Circuit would cause. Yesterday afternoon, the Court took the unusual step of calling for additional briefing on two questions that suggest it is looking for a creative way to decider the case. The first is whether some statute out there may authorize Oklahoma prosecutions “irrespective of the area’s reservation status.” If Oklahoma has such authority, then the criminal-law disruption from recognizing the reservations as still existing would be substantially less.

The second question is whether there “are circumstances” in which land that still qualifies as Indian Country might nevertheless not be  “Indian country as set forth in 18 USC 1151(a).” If so, the Major Crimes Act would not divest Oklahoma of the authority it has exercised through the years to prosecute offenses committed by Native Americans.

SCOTUSBlog.com, Court appears ready to rule that Constitution’s bar on excessive fines applies to the states (Nov. 28, 2018)

SCOTUSBlog.com, Justices dubious about ramifications of broad Indian reservation in Oklahoma (Nov. 27, 2018)

The Atlantic, Who owns Oklahoma? (Nov. 20, 2018)

– Thomas L. Root

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Supreme Court Decides Two Forfeiture Cases, Picks Up Cellphone Data Case for Next Term – Update for June 6, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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SUPREME COURT DECIDES TWO FORFEITURE ISSUES, GRANTS CERT ON CELLPHONE DATA QUESTION
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Terry Honeycutt was just a clerk, not an owner – but the Court of Appeals tried to stick him for the illegal profits.

The Supreme Court was busy yesterday – as it will be all this month – deciding two cases that relate directly or indirectly to the monetary side of sentencing and granting certiorari in a Detroit robbery case on a cutting-edge cellphone data issue.

In Honeycutt v. United States, a 6th Circuit case, the Court held that forfeiture under the Comprehensive Forfeiture Act of 1984, 21 USC § 853(a)(1), which requires forfeiture of any property “constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” some drug crimes, is limited to property that the defendant himself actually obtained as the result of the crime.

This means that the statute cannot require forfeiture by Terry Honeycutt, the petitioner in the case, who was a clerk at his brother’s grain and feed store. Terry and his brother sold large quantities of an iodine-based water purification product that they knew could be used to manufacture methamphetamine. Terry had no ownership interest in his brother’s store and did not personally benefit from the illegal sales. Despite this, the government asked the district court to hold Terry jointly and severally liable for the profits from the illegal sales and sought a judgment of $69,751.98, the profits from the conspiracy. The district court refused, holding that Terry was a salaried employee who had not received any profits from the sales.

The 6th Circuit reversed, holding that the brothers, as co-conspirators, were jointly and severally liable for any conspiracy proceeds.

Yesterday, the Supreme Court said that because forfeiture under 21 USC § 853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime, a court cannot order forfeiture from Terry Honeycutt, who had no ownership interest in his brother’s store and made nothing from the sales.

Honeycutt v. United States, Case No. 16-142 (June 5, 2017)

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The Securities and Exchange Commission has authority to investigate violations of federal securities laws and to bring enforcement actions in district court if its defendant “disgorge” illegal profits and pay civil fines.

limitations170606In 2009, the SEC brought an enforcement action against Charles Kokesh, arguing he has violated securities laws by concealing $34.9 million he had unlawfully pocketed from four business- development companies from 1995 to 2009. The Commission asked for civil penalties and disgorgement.

A jury found for the SEC, but the district court held that a 5-year limitations period in 28 USC § 2462 applied to the monetary civil penalties but not the disgorgement. The 10th Circuit agreed, holding that disgorgement was neither a penalty nor a forfeiture.

Yesterday, the Supreme Court reversed the 10th Circuit, concluding that SEC disgorgement operates as a penalty under the terms of 28 USC § 2462. Therefore, any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim arose. Because a lot of what Kokesh did was older than 5 years when the suit was brought, those sums will have to be carved out of the district court award.

The decision could have favorable implications for some forfeiture and restitution issues in federal criminal cases.

Kokesh v. SEC, Case No. 16-529 (June 5, 2017)
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Finally, the Court granted certiorari and agreed to review a 6th Circuit decision in which Timothy Carpenter was convicted of multiple counts of aiding and abetting the use of a gun in a series of cellphone store robberies. Tim was the lookout man/getaway driver, and did not carry a gun himself.

cellphoneloc170606Tim was convicted on six counts of robbery after police combed through a month’s worth of location points collected by cell towers and placed him near storefronts where armed robberies occurred. Relying on the Stored Communications Act, which allows phone companies to disclose records when the government provides “specific and articulable facts showing that there are reasonable grounds to believe” that records at issue “are relevant and material to an ongoing criminal investigation,” the government got an order to obtain phone records for 16 phone numbers, including Tim’s cellphone. The several months’ worth of historical cell-site records received showed which cell towers were linked to which cellphone while it was in use. The records allowed the government to determine that, over a five-month span in 2010 and 2011, Tim’s cellphone connected with cell towers in the vicinity of the robberies.

Tim argued in district court and at the 6th Circuit that the records should be suppressed because the government had not obtained a warrant for them. The 6th rejected Tim’s argument that disclosure of his phone records was a search for which the government needed a warrant, holding cellphone companies collect the location data “in the ordinary course of business” for their own purposes. What’s more, the Circuit said, Tim had no reason to think his cellphone records would be kept private, the court explained, because the records only show his cellphone connecting to specific cell towers, without providing any information about the content of his calls.

The U.S. Supreme Court picked the Carpenter case from a thundering herd of similar cert petitions to rule on the question of whether law enforcement is required to obtain a probable-cause court warrant to access such cellular location data.

“Because cell phone location records can reveal countless private details of our lives, police should only be able to access them by getting a warrant based on probable cause,” Nathan Wessler, a staff attorney with the ACLU Speech, Privacy and Technology Project said in a statement. “The time has come for the Supreme Court to make clear that the longstanding protections of the 4th Amendment apply with undiminished force to these kinds of sensitive digital records.”

Carpenter v. United States, Case No. 16-402 (certiorari granted  on June 5, 2017)

International Business Times, Can Police Track Your Phone Without Warrant? Supreme Court To Decide On Location Data (June 5, 2017)

Amy Howe, Justices to tackle cellphone data case next term, SCOTUSBlog.com (June 5, 2017)

– Thomas L. Root

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The Second Thief Gets It All – Update for March 28, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
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VICTIM BASHING

A verity beyond peradventure is the notion that a thief should return that which he or she stole to the victims. It’s not punishment: if it were, there would hardly be a legal deterrence to theft. But punishment alone, which exacts a penalty that vindicates the rights of society, does not vindicate the rights of the victims. People who have stuff taken from them ought to get it back.

theft170328Federal law pays lip service to this notion in the Mandatory Victims Restitution Act, which requires a district court to order restitution of the property stolen or defrauded or otherwise taken from a victim. Ponzi schemers are ordered to pay back their victims, bank robbers are ordered to repay the banks, tax cheats have to pony up to the government. And under a separate statute, 18 USC 2259, children who have been the victims of child porn have been found to be entitled to compensation from defendants who happened to have their pictures in their computers, despite the fact that the defendants acquired the pictures from the Internet with no idea who the victim was.

But here’s the rub. The law says that property acquired through crime does not ever belong to the person to acquired it criminally. At common law this was fine, because title stayed with the lawful owner. But trust Congress to (greedily) mess things up: under 18 USC 981 (and a host of other statutes), stolen property is forfeited to the government.

So Conrad Conman beats 50 investors out of $1 million in his fraud scheme. Unlike every other fraudster out there, Conrad happens to live frugally on earnings from his day job as a bilge pump operator, so the $1 million he stole remains intact, stuffed under his mattress.

When the Feds bust him, the civil forfeiture statute permits the government to seize the $1 million. That money becomes federal property. The victims, all of whom would like their money back are left with nothing but the warm contentment of knowing that the million will be spent prudently and constructively by Uncle Sam.

FLU170328The district court will sentence Conrad to 10 years, and order him to pay the victims back from his bilge pump operator’s salary. After he does his time, the U.S. Attorney’s Office Financial Litigation Unit – an understaffed and read-headed stepchild desk at the USAO – will take over collecting restitution. It’s little wonder that as of the end 2014, the FLUs nationwide had simply thrown up their collective hands, declaring a whopping 93% of the $78 billion owed to victims as uncollectible. Every dime of that is money the victims will never see again.

So Conrad bilked the investors, and the government rides into the sunset with their money. Moral: if you’re going to be a thief, be a government.

All of which brings us to today’s case. Christine Bodouva was a financial officer for an architectural firm. She made off with about $127,000 that employees had contributed to the office 401(k) plan. After she was caught, she repaid every dime to the bilked employees before her sentencing.

But at sentencing, the district court ordered her to forfeit the $127,000 she had stolen to the government. She said, “What $127,000? I paid it back.” The district judge said she had no authority to offset the forfeiture against the restitution already paid, and ordered Chris to forfeit the $127,000 she no longer had to the government anyway.

Last week, the 2nd Circuit agreed, holding that “restitution and forfeiture are authorized by different statutes and serve different purposes — one of remediating a loss, the other of disgorging a gain.” The Circuit noted that restitution and forfeiture are creations of two distinct statutes, and “nothing in the statutory scheme permitted the district court to reduce the mandated criminal forfeiture order because the defendant also had to satisfy her obligation to pay restitution or had already substantially done so.”

To be sure, Chris’s victims were luckier than most, because they ended up in line ahead of Uncle Sam. They were made whole. At the same time, Chris was no worse off than if she had forfeited the $127,000 she paid back to the victims, because under the MVRA, she would have had to pay the victims restitution anyway.

gvttheft170328We respectfully disagree with the Circuit’s observation that “criminal forfeiture is a form of punishment. As such, it is distinct from restitution or other remedial actions, which are intended to return the victim and the perpetrator to the status quo that existed before the violation took place.” Christine’s sentence – a year and a day – was a punishment. The fine of $5,000 levied by her district judge is a form of punishment. The forfeiture, however, was done civilly in this case, making the observation that it, too, is punishment harder to accept. Even the language of the Judgment is questionable: the Court ordered Christine to “forfeit the Defendant’s interest” in the money to the government. But a defendant has no interest in stolen property: rather, it remains the property of the people from which it was stolen.

Bluntly put, a forfeiture is less of a “punishment” than it is a statutorily authorized government theft of that which has already been stolen. Were it otherwise, the government would see to it that victims were compensated first, and then the forfeiture applied later.

United States v. Bodouva, Case No. 16-3937 (2nd Cir. Mar. 22, 2017)

– Thomas L. Root

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