South Carolina Criminal Defense Blog

On February 25, in U.S. v. Rivers, the Fourth Circuit held that South Carolina's failure to stop for blue light (FTSBL) statute is not a violent felony for purposes of enhancement under the Armed Career Criminal Act (ACCA).

Possession of a weapon by a felon ordinarily carries a sentence of up to 10 years, but the Armed Career Criminal Act increases the potential punishment to a mandatory minimum of 15 years if the defendant has three prior convictions for a violent felony or serious drug offenses. A violent felony is defined as a crime punishable by more than a year, and that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

History:

U.S. v. James: in 2003 the Fourth Circuit holds that FTSBL was a violent felony under the ACCA because it involves conduct that "presents a serious potential risk of physical injury to another." The Court applies a categorical approach - looking at the elements of the crime without reference to the underlying facts of the conviction.

Begay v. U.S.: in 2008 the SCOTUS holds that New Mexico's DUI statute does not qualify as a violent felony under the ACCA because "DUI involves conduct that presents a serious potential risk of physical injury to another." It is simply too dissimilar to the listed crimes (burglary, arson, extortion, the use of explosives) to qualify. The Court held that to be classified as a violent felony, the crime must be roughly similar in kind and in the degree of risk to the examples listed - the crime must involve conduct that is purposeful, violent, and aggressive.

U.S. v. Roseboro: in 2009, the Fourth Circuit acknowledges that the U.S. Supreme Court in Begay overruled the Fourth Circuit's prior decision in James, but then performs some legal analytical acrobatics to find that FTSBL is still a violent felony. Using a "modified categorical approach," the Court holds that there could be two types of FTSBL - because S.C.'s FTSBL statute does not have a specific intent requirement, there could be cases where there is intent and cases where is no intent. The Court holds that in cases where there is intent (come on - in practice, this means all of them) FTSBL qualifies as a violent felony.

Chambers v. U.S.: in January 2010, eight days after Roseboro was decided, the SCOTUS holds that the crime of escape, where it involves either an actual escape from a facility or a failure to report, must be analyzed under the modified categorical approach and split into two separate offenses. Because it proscribes two different types of behavior, one of which inherently has a risk of violence and another which does not, and each example can be considered a different/ separate crime, the Court treats them as two separate crimes and holds that failure to report, as opposed to an actual escape, should not be considered a violent felony.

Back to Rivers - because there is only one type of conduct that is involved in S.C.'s FTSBL statute (keepin' on truckin' after the blue light comes on behind you), the Court must apply the categorical approach, without reference to the underlying facts of the conviction. Because FTSBL is a strict liability offense and includes conduct that is not intentional, it is different than "violent and aggressive crimes committed intentionally such as arson, burglary, extortion, or crimes involving the use of explosives," and therefore is not a violent felony for purposes of the ACCA.

Lanny A. Breuer, chief of the Justice Department's criminal division, is asking Congress to equalize penalties for crack and for powder cocaine in the federal sentencing guidelines.

The theory behind the law, that crack — cocaine cooked in baking soda — was more addictive and led to more violent crime was soon proved false. But by then, the country was locked into a policy under which the mainly minority drug users arrested with small amounts of crack were getting harsher sentences than white users caught with far larger amounts of powder.

The United States Sentencing Commission, which sets sentencing guidelines for the federal courts, reports that in 2006, 82 percent of the people convicted under the federal crack statute were black and only 9 percent were white. Many of the people given those harsh sentences were also first-time offenders who could have been rehabilitated through community-based drug treatment programs. In addition to ruining countless young lives, the policy undermined trust and confidence in the criminal justice system.

Congress has repeatedly ignored calls to equalize sentencing, partly because Justice Department officials in previous administrations have argued against it. This week, however, Lanny A. Breuer, the new chief of the Justice Department’s Criminal Division, told lawmakers that it was time to revisit the crack/cocaine disparity.

In Cone v. Bell, released yesterday, the U.S. Supreme Court reversed a death sentence based on Brady violations by the prosecutor. Cone asserted an insanity defense at trial, with testimony that he suffered from post-traumatic stress disorder resulting from his service in Vietnam and amphetamine-induced psychosis resulting from extended and heavy use of drugs. The prosecutor argued that Cone knew the difference between right and wrong, introduced testimony that Cone was not a drug user, and called Cone's defense "baloney." Years later, Cone's attorneys discovered that the prosecutor's file contained numerous undisclosed documents that contradicted the prosecutor's statements and witnesses:

Among the undisclosed documents Cone discovered were statements from witnesses who had seen him several daysbefore and several days after the murders. The witnesses described Cone’s appearance as “wild eyed,” App. 50, and his behavior as “real weird,” id., at 49. One witness affirmed that Cone had appeared “to be drunk or high.” Ibid. The file also contained a police report describingCone’s arrest in Florida following the murders. In that report, a police officer described Cone looking around “in afrenzied manner,” and “walking in [an] agitated manner” prior to his apprehension. Id., at 53. Multiple police bulletins describing Cone as a “drug user” and a “heavy drug user” were also among the undisclosed evidence. See id., at 55–59.

The documents included impeachment evidence from which the jury could have concluded that two of the state's witnesses, a woman who had lived with Cone who testified that he was not a drug user, and an officer who testified that Cone was not a drug user, were lying on the stand.

What the Court did: The Court begins the opinion with strong language about due process and the duties of a prosecutor to seek justice and not convictions:

The right to a fair trial, guaranteed to state criminal defendants by the Due Process Clause of the Fourteenth Amendment, imposes on States certain duties consistent with their sovereign obligation to ensure “that ‘justice shall be done’” in all criminal prosecutions. United States v. Agurs, 427 U. S. 97, 111 (1976) (quoting Berger v. United States, 295 U. S. 78, 88 (1935)). In Brady v. Mary-land, 373 U. S. 83 (1963), we held that when a State sup-presses evidence favorable to an accused that is material to guilt or to punishment, the State violates the defendant’s right to due process, “irrespective of the good faith or bad faith of the prosecution.” Id., at 87.

The Court holds that Cone's claim is not procedurally barred. A federal habeas claim is barred if the state courts were not first given the opportunity to consider the federal claim. In this case, the state courts twice considered Cone's claims and, for various reasons some of which were not supported by the record, ruled against him. Therefore his claims were not barred and the state had ample opportunity to decide his claims.

The Court then holds that the withheld evidence is material to the question of punishment, but not of guilt. Despite the fact that Cone's defense was insanity based on mental illness induced by his excessive drug use, the Court holds that the evidence of guilt was overwhelming and the withheld evidence would not have made a difference. But, the Court holds that it might have made a difference as to whether Cone was given the death penalty, and therefore the case is remanded to the district court to consider the merits of the Brady violation claim (which is not procedurally barred, which was the district court's reasoning for refusing to hear the claim).

What the Court did not do: Despite it's bold opening paragraph, the opinion's tone sounded like the prosecutor's ethical violations were no big deal. This is just another legal issue that we must analyze to determine if there is prejudice to the defendant or not (I disagree with the Court's analysis as to prejudice, as the evidence of excessive drug use is very relevant to his defense of drug-induced psychosis).

It would be nice to hear the Court say, this case is riddled with unethical conduct by state's attorneys, and the extent of that misconduct and the resulting denial of due process demands reversal of this conviction. We will no longer stand idle while prosecutors pursue convictions at the expense of justice and our system is subverted by unethical conduct. If a prosecutor lies to the court and to a jury, if a prosecutor does not produce exculpatory evidence in violation of our prior opinions, court rules, and ethics rules, if an appellate state's attorney argues inconsistent and contradictory theories depending on which court they are before, we will reverse the conviction and strongly recommend discipline by their state bar authorities.

All of these actions by state's attorneys were before the Court, noted by the Court, and accepted by the Court as true. The issue framed on appeal was whether Cone's habeas claim was procedurally barred, but the Court could have gone much further in their analysis of this case.

In another opinion finding against the defendant today, the U.S. Supreme Court, in Dean v. U.S., held that the mandatory minimum for discharging a firearm during the course of a violent crime does not require intent to discharge. Possession of a firearm during a violent crime or drug trafficking crime results in a mandatory minimum of 5 years, "brandishing" a firearm results in a minimum of 7 years, and discharging a firearm results in a minimum of 10 years.

Dean argued that, because the discharge of his firearm during a bank robbery was accidental and not intentional, he should not be subject to the mandatory minimum of 10 years. The Supreme Court disagrees - it does not matter if the discharge was accidental or intentional, the statute does not require a separate finding of intent, and if you carry a loaded gun into a bank robbery you assume the risk that the gun may go off unintentionally. As the witty Chief Justice Roberts put it in his opening lines: "Accidents happen. Sometimes they happen to individuals committing crimes with loaded guns."

In Kansas v. Ventris, released today, the United States Supreme Court held that, although a statement has been obtained in violation of a defendant's right to counsel, it may be used at trial for purposes of impeaching the defendant's testimony. Ventris and a co-defendant, Theel, were charged with aggravated robbery and murder. Theel's murder charge was dismissed in exchange for her testimony that Ventris pulled the trigger, and the prosecution placed an informant in Ventris' cell to obtain incriminating statements.

Predictably, the informant claimed that Ventris confessed to killing the victim. The state admitted at trial that this was a statement obtained in violation of Ventris' right to counsel (cops, prosecutors, or their agents cannot question a defendant once the right to counsel has attached unless the defendant approaches them himself), but at trial the judge allowed the state to call the informant to impeach Ventris' testimony that he was not the shooter. The Supreme Court held that this was appropriate, as the deterrent effect of excluding evidence obtained in violation of the constitution does not apply where it is used for impeachment purposes only, and to hold otherwise would give the defendant free reign to lie under oath. (If Ventris' disagreement with the informant was only whether or not he was the triggerman, it looks like Ventris won on that point anway, since he was acquitted of murder and convicted of robbery)

I agree with the Court's reasoning and I believe it is the right conclusion, but in my opinion we are discussing the wrong issues. The question we should be asking is whether the informant, who undoubtedly is attempting to please the prosecutor in order to obtain his own freedom, should be permitted to testify at all without independent corroboration of his testimony. Our criminal courts have become poisoned by the use of perjured and unverified testimony by informants, which are used routinely by prosecutors, whether knowingly and unethically or ignorantly and incompetently. A culture of lying to obtain deals has arisen in our jails and prisons, which is used indiscriminately by many prosecutors in state and federal courts.

Testimony of jailhouse informants is inherently unreliable, and may be the biggest challenge that our justice system faces today. It is too easy for prosecutors, wielding the threat of prosecution and the promise of freedom, to find an inmate who is willing to say anything that will get them closer to the light of day. I agree that it makes sense to allow use of evidence which was obtained unlawfully for impeachment purposes. It does not make sense to allow use of patently unreliable evidence, whether obtained in violation of the constitution or not, for any purpose.

The Fourth Amendment has gotten its head above water for a gasp of fresh air with the United States Supreme Court's opinion in Arizona v. Gant. It is not necessarily a far-reaching opinion (because the exceptions still swallow the rule when it comes to application of the Fourth Amendment), and it's holding is limited to a fairly specific set of circumstances as I'll discuss in a moment, but it does spark some hope that the Supreme Court still believes in our Constitution and specifically the Fourth Amendment. Yesterday following the opinion's release there was a ripple across the blogosphere as criminal defense bloggers celebrated and provided their commentary (see below for links).

Gant deals with the search of a vehicle incident to arrest, and it's holding is that:

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

Up to this point, police have routinely searched vehicles any time there was an excuse to arrest the driver (note that in S.C. you can technically be arrested for minor traffic violations such as speeding). In 1969, the U.S. Supreme Court held in Chimel v. California that police could search the area around an arrestee from which they could grab a weapon or destructible evidence, in the interest of 1) officer safety; and 2) preservation of evidence. In 1981, the U.S. Supreme Court decided New York v. Belton, which expanded this rule to the passenger compartments of vehicles and all containers therein. Despite the policy served by this rule - officer safety and preservation of destructible evidence - this has been interpreted to apply to cars even where the person arrested is handcuffed and in the patrol car, and in some cases it has been held to apply hours after the arrestee has been removed from the scene.

Justice Stevens in the majority opinion acknowledges this and says, "lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel." The majority holds that the rule in Chimel and Belton will apply in two situations: 1) "when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search," and 2) "when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle."

My first thought regarding the first circumstance was, will they now train police to leave arrestees unsecured by their car long enough to search for evidence? I believe the Court considered this as well, as they noted in footnote 4: "Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains."

Regarding the second circumstance, this leaves open a valid search incident to arrest where evidence of the crime of arrest may be found in the vehicle, such as an arrest for a drug offense, but the Court makes it clear that this does not encompass an arrest for a traffic offense - you cannot reasonably expect to find evidence of driving under suspension, for example, inside a jacket pocket in the back seat of the car.

A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.

Scalia's concurring opinion is more straightforward and honest, and I agree with his analysis. He proposes that the Court completely do away with the charade of the Belton line of cases and overrule them.

When an arrest is made in connection with a roadside stop, police virtually always have a less intrusive and more effective means ofensuring their safety—and a means that is virtually always employed: ordering the arrestee away from the vehicle, patting him down in the open, handcuffing him, and placing him in the squad car. . . .

In my view we should simply abandon the Belton-Thornton charade of officer safety and overrule those cases. . . .

We should recognize Belton’s fanciful reliance upon officer safety for what it was: “a return to the broader sort of [evidence-gathering] search incident to arrest that we allowed before Chimel.”

Courts need to be honest in their analysis of cases - if we are going to have an exception to the Fourth Amendment for vehicles, to allow law enforcement more leeway in gathering evidence of crimes, we need to call it that. We don't need to justify it with a non-existent concern for officer safety - I am impressed with the majority opinion in Gant and even more so with Scalia's view. Gant's case is a perfect example of police using the Belton rule for general investigation where officer safety was never an issue - the police were at his house following an anonymous tip regarding drug activity. They knew his license was suspended. When he arrived at his house driving a car, they placed him under arrest, handcuffed him, and secured him in a patrol car. They then searched his car for drugs, which they found in a jacket pocket in the back seat. There was no probable cause to search the car for drugs, there was no concern for the officer's safety, and there was no evidence of driving under suspension to be found in his vehicle.

As I said at the beginning above, Gant is limited in its application, and the Court notes that there are many other exceptions to the warrant requirement that will apply in various circumstances. Although the Court does not address this, the biggest one will be the inevitable discovery rule and inventory searches. If a person is arrested for any reason and the car must then be towed, it will eventually be subject to an inventory search; because it will be searched anyway, courts will find it reasonable for the police to go ahead and search the vehicle. This means that Gant will only apply where the car is on the arrestee's property or where there is another licensed driver in the car - in which case the car will not be subject to towing and a subsequent inventory search.

More commentary on Gant across the blogosphere: A Public Defender, Jamie Spencer, Robert Guest, John Wesley Hall, Mark Bennett, Scott Greenfield, and Paul Kennedy.

In Knowles v. Mirzayance, decided yesterday, the U.S. Supreme Court denied Mirzayance's claim of ineffective assistance of counsel where his attorney declined to present his only available defense during the insanity phase of his trial.

In California, in a trial where the defendant enters a plea of not guilty and a plea of not guilty by reason of insanity, the trial is bifurcated into a guilt phase and an insanity phase where the jury is to consider each separately. Mirzayance had presented evidence of his mental state during the guilt phase in an attempt to obtain a verdict of 2nd degree murder rather than 1st degree murder, arguing that the requisite intent was not present due to Mirzayance's illness; the jury rejected the mental illness evidence and found Mirzayance guilty of 1st degree murder.

Mirzayance's counsel then decided not to present the evidence of not guilty by reason of insanity during the second phase of the trial because it would have been futile, since the jury had already rejected the same testimony. MIrzayance's petition for post conviction relief in state court was denied, then he filed a habeas petition in federal court asking for relief, arguing that his trial counsel's decision to forgo the insanity defense was ineffective assistance of counsel because there was no other valid defense and therefore Mirzayance had nothing to lose by arguing insanity during the second phase of the trial.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d)(1), a federal court may not grant a state prisoner’s habeas application unless the relevant state-court decision “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." The Supreme Court held that there is no clearly established "nothing to lose" rule, and therefore MIrzayance's claim fails. Ineffective assistance claims must be evaluated under the Strickland v. Washington two pronged test of ineffectiveness under prevailing professional norms and prejudice to the defendant. The Court went on to hold that counsel's decision to forgo the insanity defense, even though there was no other defense available, was an acceptable tactical decision that did not fall below the standard of "reasonableness under prevailing professional norms," and that there was no prejudice to Mirzayance anyway because the jury had already rejected the testimony regarding MIrzayance's mental state.

The Court's reasoning is easy enough to follow, and I understand that the standards for what is competent representation under the 6th Amendment are ridiculously low, but it is hard to swallow that when there is only one available defense and there is nothing to lose, that counsel does not have a duty to present that defense and throw everything he's got at the jury, regardless of his odds of success. It doesn't sound reasonable under prevailing professional norms for an attorney to lay down and quit because he doesn't think the jury will agree with him. If there is not a "nothing to lose" standard for situations like this there should be - but the Court has passed by the opportunity to create one in this case.

In U.S. v. Dunphy, an opinion interpreting the recent sentencing guidelines amendment for crack cocaine, the Fourth Circuit Court of Appeals held that an amended sentence based on the crack cocaine reduction cannot be reduced below the minimum sentence in the new, amended, guideline range:

The district court here expressly considered the § 3553(a) factors in making the determination (1) that a reduction of Dunphy’s term of imprisonment was warranted and (2) that the extent of the reduction for Dunphy should be to the minimum of the amended guideline range. It properly did so in accord with the limits described in U.S.S.G. § 1B1.10(b), refusing to go below the minimum of the amended guideline range.8 J.A. 82-83 . . .

When a sentence is within the guidelines applicable at the time of the original sentencing, in an 18 U.S.C § 3582(c) resentencing hearing, a district judge is not authorized to reduce a defendant’s sentence below the amended guideline range.

In U.S. v. Whorley, the 4th Circuit Court of Appeals affirmed a substantial upward variance to 240 months in a child porn case (the government filed a motion seeking an upward departure of 262 to 327 months’ imprisonment; the guidelines range was 87 to 109 months’ imprisonment but the statute provided for a mandatory minimum of 180 months' imprisonment), citing Gall v. United States, showing again that Gall is a two-edged sword, permitting courts leeway in departing upwards from the sentencing guidelines as well as downwards:

The district court’s consideration of Whorley’s sentence in this case was thorough, and the sentence it imposed was amply supported by the facts and by legally appropriate considerations. In these circumstances, we cannot agree with Whorley that the district court abused its discretion and acted unreasonably.

In Gall v. United States, 128 S. Ct. 586 (2007), the Supreme Court repeatedly instructed that appellate courts defer in these circumstances. With respect to a departure or variance sentence, such as before us, the Court stated:

[The appellate court] may consider the extent of the deviation, but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.

Gall, 128 S. Ct. at 597. Repeating these instructions, the Court stated:

But it is not for the Court of Appeals to decide de novo whether the justification for a variance is sufficient or the sentence reasonable. On abuse-of discretion review, the Court of Appeals should have given due deference to the District Court’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.

UNITED STATES v. WHORLEY 25 Id. at 602. See also United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007). In following these instructions, we have affirmed departures encompassing the range involved here. See, e.g., United States v. Evans, 526 F.3d 155, 161-66 (4th Cir. 2008) (affirming a 316% upward variance); United States v. Curry, 523 F.3d 436, 439-41 (4th Cir. 2008) (affirming a 13% downward departure); Pauley, 511 F.3d at 474-76 (affirming a 46% downward departure). In Evans, we noted, "We recognize that the sentence [constituting a 316% variance] imposed on Evans may not be the only reasonable sentence, but it is a reasonable sentence, and the Supreme Court [in Gall] has directed that any reasonable sentence be upheld." 526 F.3d at 166.

In this case, we are presented with no procedural or substantive errors in the district court’s determination that the goals of federal sentencing were best served by the 240- month sentence, and therefore we conclude that the sentence was not unreasonable.

The Court also rejected Whorley's claims that

1) § 1462 is facially unconstitutional in prohibiting receipt of obscene materials because receiving materials is an incident of their possession, and possession of obscene materials is protected by the holding of Stanley v. Georgia, 394 U.S. 557 (1969); (2) that § 1462 is facially unconstitutional because the term "receives," when used in the context of a computer, is unconstitutionally vague; (3) that § 1462 is unconstitutional as applied to text-only e-mails, arguing that text alone cannot be obscene; and (4) that § 1466A(a)(1) is unconstitutional under the First Amendment, as applied to cartoons, because cartoons do not depict actual minors.