How to Get Away with Murder: Get Convicted in the D.C. Circuit

BACKGROUND

It goes without saying that killing an officer or employee of the United States is a punishable offense, but is that murder punishable if committed outside American territory? 18 USC § 1114 makes it illegal to kill or attempt to kill any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties. Federal courts have long avoided reading statutes as applicable on foreign soil, except when Congress clearly indicates as such, by using the canon of statutory interpretation known as the presumption against extraterritoriality. Some courts, however, have used a 1922 Supreme Court decision, United States v. Bowman, to justify applying § 1114 outside American borders.

ISSUE

Can 18 USC § 1114 criminalize killing or attempting to kill an officer or employee of the United States outside the territory of the United States?

THE SPLIT

The Second and Eleventh Circuits have applied 18 USC § 1114 extraterritorially, concluding that Congress would have intended it to do so. The D.C. Circuit declined to apply the statute extraterritorially, holding firm to the presumption against extraterritoriality.

Second and Eleventh Circuits

The Eleventh Circuit, in United States v. Benitez (1984), held that § 1114 has extraterritorial application. In Benitez, the defendant was convicted of conspiracy to murder DEA agents engaged in the performance of their official duties in Colombia, among other crimes. The court held that “assault and attempted murder of DEA agents is exactly the type of crime that Congress must have intended to apply extraterritorially.” The Eleventh Circuit upheld the district court’s judgment of conspiracy to murder the agents.

The Second Circuit, in United States v. Al Kassar (2011), also held that § 1114 has extraterritorial application. In Al Kassar, three defendants were convicted of conspiring to kill U.S officers in Spain and Romania. The Second Circuit read Bowman to mean “the presumption that ordinary acts of Congress do not apply extraterritorially does not apply to criminal statutes.” § 1114 has no explicit provision for application on foreign soil, therefore, according to Bowman, congressional intent must “be inferred from the nature of the offense.” The court held “the nature of the offense – protecting U.S. personnel from harm when acting in their official capacity – implies an intent that it applies outside of the United States.” The Second Circuit explained that this is because a significant number of those employees perform their duties on foreign soil. The court in Al Kassar affirmed the convictions and sentences.

The Second Circuit affirmed the application of territoriality to § 1114 in United States v. Siddiqui (2012). In Siddiqui, the defendant was convicted of attempted murder of U.S. nationals, officers, and employees, among other crimes. The court held, “we see no basis for expecting Congress to have intended to limit these protections to U.S. personnel acting within the United States only.” The nature of the offense, the court concluded, implies a congressional intent outside U.S. territory. The court in Siddiqui affirmed the convictions and sentence.

D.C. Circuit

The D.C. Circuit, in United States v. Sota (2020), held that because § 1114 does not speak to extraterritorial application, one way or the other, the presumption against territoriality remains firm, and therefore does not apply beyond U.S. territory. In Sota, two defendants were convicted of killing an American law enforcement officer in Mexico, among other crimes. The court determined that the presumption against territoriality remained unrebutted because Congress had not “affirmatively and unmistakably instructed that the statute will” apply abroad. Congress passed § 1114 and nearby § 1116 in a single statute, the Antiterrorism and Effective Death Penalty Act of 1996. § 1116 criminalizes killing a U.S. officer or employee who is otherwise “entitled pursuant to international law to special protection against attack.” The court determined that §§ 1114 and 1116 must be read in pari materia, and therefore, “Congress’s explicit provision for extraterritorial jurisdiction in one provision (§ 1116) militates against inferring any such application for a closely related and nearby provision with no such signal (§ 1114).

The D.C. Circuit also concluded that the Second and Eleventh Circuits are misinterpreting Bowman because Bowman should be not be read so broad such that all criminal statutes can be applied extraterritorially. Instead, the D.C. Circuit asserted that Bowman stands for the notion that the presumption against extraterritoriality is rebutted if the criminal statutes in question would be greatly curtailed by scope and usefulness if limited to a strict territorial jurisdiction. The court in Sota vacated the defendants’ convictions under § 1114.

LOOKING FORWARD

As of now, it does appear that an individual, especially a foreign national, may be able to avoid punishment for murdering an officer or employee of the United States on foreign soil, if convicted under the jurisdiction of the District of Columbia Circuit. This issue may only get resolved if, unfortunately, someone attempts to murder or does murder an officer or employee of the United States outside of American territory and the Supreme Court takes up the case.

Should the Supreme Court decide on this matter, we may find an interesting and surprising split between Justices. One would typically expect Republican-appointed Justices to side in favor of law and order and interpret § 1114 to apply extraterritorially. However, an intentionalist interpretation, more favored by Democratic-appointed Justices, would lean in favor of expanding the scope of the law beyond American borders, and a strict textualist interpretation would refrain from reading intent and instead focus on the words of the statute which have no reference to international jurisdiction. Nonetheless, this issue is unlikely to reach the Supreme Court any time soon and will probably continue to yield a growing split among the circuits.  

What Not to Do While Robbing A Bank (Alternatively: How to Get Away with Abduction)

BACKGROUND

The Federal Sentencing Guidelines offer judges parameters by which to calculate sentencing based on the severity of the crime and the defendant’s criminal history. The Guidelines aim to assign fair, relatively consistent sentences across the country.

The Guidelines include enhancements, which are provisions that increase the length of a sentence for a particular crime. A robbery, as a base offense, is a level twenty. However, the robbery guideline enhances the base offense level by four if any person was abducted to facilitate commission of the offense or to facilitate escape. The guidelines commentary defines “abducted” to mean a person was forced to accompany an offender to a different location. What constitutes a different location is up for debate.

ISSUE

Under the Sentencing Guidelines, does a defendant “abduct” a victim during a robbery by making them move to another room within the same building?

THE SPLIT

Rather than a two-way split, the various positions taken by circuits seem to fit into three categories. The Sixth, Seventh and Eleventh Circuits all concur that different rooms within the same store do not qualify as “different locations” under the enhancement. The Fourth and Fifth Circuits disagree. The Third and Tenth Circuit fall somewhere in-between, having adopted a novel three-prong test to make such a determination.

Sixth, Seventh, and Eleventh Circuits

In 2019, the Sixth Circuit became the latest to join the split in United States v. Hill. In this case, the robbers forced employees within a cellphone store to move from the sales area to the back room in order to tie them up. The district court applied the four-level “abduction” enhancement, which increased the defendant’s sentence by approximately two years.

When the defendant appealed his sentence, the Sixth Circuit overturned the enhancement. The court held that “the phrase ‘different location’ is best read to refer to a place different from the store that is being robbed. And a store’s back room does not qualify as a ‘different location’ from the store.” The court provided multiple reasons for their finding.

Amongst them, the court explained that ordinary speakers rarely specify the exact location within a store that was robbed, but rather generalize one location. For example, in common speech, one does not detail that the sales area of a store or vault at the bank was robbed, but rather simply state that a store or bank was robbed. Additionally, the court expressed that if the Sentencing Commission meant for such a short movement to count, it had no reason to add the phrase “different location.” Moreover, the example in the Guidelines commentary is of a robber forcing a bank teller into a getaway car—a location different than the store itself.

The Eleventh Circuit in 2013 reached the same conclusion in United States v. Whatley. The circuit provided further reasoning that “different location” must be read in light of “abduction,” explaining that a normal speaker “would conclude that [the robber] had taken the [employees] hostage during the commission of the . . . robberies but would not describe those employees as having been abducted or kidnapped.”

Similarly, in 2010, the Seventh Circuit held in United States v. Eubanks that dragging a store employee about six feet from back room to front room of a store was not abduction, stating that “[t]o find otherwise would virtually ensure that any movement of a victim from one room to another within the same building, without any other aggravating circumstances, would result in an abduction enhancement.” However, the court did note that each finding was a fact specific determination. The Sixth Circuit has agreed and held the same limitation applies.

Fourth and Fifth Circuits

In 2017, the Fifth Circuit joined the Fourth in finding that different areas within the same store do qualify as a “different location” and thus require an enhancement. In United States v. Buck, a robber forced store employees from the front of the store to the back. In upholding the abduction enhancement, the Court stated that the term “different location” must be interpreted with flexibility. The Court wrote: “we are satisfied that the conspirators forcing [employees] to move from the front of the stores to the backs was sufficient to make the abduction enhancement applicable.”

In United States v. Osborne, the Fourth Circuit also deemed the pharmacy section and the store area of a Walgreens to be discrete locations. Like the Eleventh Circuit, the court looked to ordinary language, but it reached a different conclusion: “It is in ordinary parlance to say that the pharmacy section and the store area are ‘different locations’ within the Walgreens building. This is especially true in view of the fact that the pharmacy section and the store area are divided by a counter, as well as a secured door intended to be passable only by authorized persons via keypad.”

Third and Tenth Circuits

The Third Circuit has taken a unique approach by creating a three-prong test to make a determination of whether to apply the robbery enhancement. In United States v. Reynos, the Court closely examined the language of the enhancement and engineered three predicates accordingly:

First, the robbery victims must be forced to move from their original position; such force being sufficient to permit a reasonable person an inference that he or she is not at liberty to refuse. Second, the victims must accompany the offender to that new location. Third, the relocation of the robbery victims must have been to further either the commission of the crime or the offender’s escape.

Following this test, the Court concluded that an abduction occurred where a robber, wielding a pistol, forced pizza shop employees from where they were hiding in the restaurant bathroom to the cash register area—a distance of approximately thirty-four feet—so that they could assist him in opening the cash register.

In 2017, the Tenth Circuit adopted this test as well in United States v. Archuleta. Though the test is meant to be a neutral arbitrator, it tends to favor using the enhancement.   

LOOKING FORWARD

The broad inconsistencies among the circuits frustrate the very purpose of the Federal Sentencing Guidelines. Varying interpretations continue to result in sentencing discrepancies across the country and are not limited to just the robbery enhancement. It has become clear that sentencing disparities due to the complexity of the Federal Sentencing Guidelines, coupled with judicial discretion, need to be addressed. While the Supreme Court could take up and address each incongruity, this solution would be inefficient and result in many defendants spending a disproportionate amount of time in prison. Rather, it may be time for a complete overhaul of the guidelines and fundamental criminal sentencing reform.

In the meantime, defendants may want to take note of what not to do during a robbery. 

 

 

 

 

Unintended Ambiguity: Sentencing Enhancements for “Physical Restraint” in the Federal Sentencing Guidelines

BACKGROUND

Congress created the United States Sentencing Commission (USSC) through the Sentencing Reform Act of 1984. The USSC established Federal Sentencing Guidelines––effective since 1987—to provide more structure and certainty to the administration of punishment in the federal court system. The sentencing guidelines aim to assign fair, relatively consistent sentences by providing different levels of offense seriousness: as the crimes get more serious, the offense level correspondingly rises. The aim of these Guidelines was to take away what many previously viewed as unfettered discretion held by federal trial judges. After the U.S. Supreme Court’s holding in United States v. Booker in 2005, these Guidelines are no longer mandatory, but judges must provide an explanation when exercising their discretion to depart from them.

The Guidelines include enhancements, which are provisions that increase the length of a sentence for a crime. Enhancements generally fall within two broad categories: 1) non-recidivist enhancements, which may stem from the particular circumstances of the offense or 2) recidivist enhancements, which are based on the defendant’s criminal history. In robbery charges there is, among other circumstance-based enhancements, an enhancement that increases the offense level by two levels if any person was physically restrained to facilitate commission of the offense or to facilitate escape. The Guidelines define “physically restrained” as “the forcible restraint of the victim such as by being tied, bound, or locked up.” 

THE ISSUE

Can the sentencing enhancement for physically restraining a victim apply when the defendant only threatened the victim with verbal threats and a firearm, but without actual physical contact?

THE SPLIT

A majority of circuits have taken a position on this issue and can generally be divided into two camps: 1) those that believe it can suffice to restrain from movement due to threats and 2) those that require actual physical contact. 

The First, Fourth, and Tenth Circuits take the position that threats without contact can suffice for “physical restraint” to have occurred. In United States v. Miera (2008), the Tenth Circuit held that the sentencing enhancement applied where the defendant stood in front of the bank’s door waving a gun and demanded that the bank’s occupants “don’t move.” The court posited that physical restraint is not limited to physical touching and that keeping someone from doing something is inherent within the concept of restraint. In the court’s view, the enhancement would not apply if Miera had simply walked up to the teller’s station with a gun visible in his waistband and demanded money. However, because Miera blocked the exit, pointed the gun, and commanded the individuals to not move, the actions in the aggregate amounted to physical restraint.

Similarly, the Fourth Circuit case United States v. Dimache (2011) involved the defendant pointing a gun at and threatening multiple bank tellers, ordering them to the floor and telling them not to move. The court determined these actions constituted physical restraint because the essential character of physical restraint is the deprivation of a person’s freedom of personal movement. So long as a victim is prevented from moving due to a threat of physical force, that is enough; physical restraint is not limited to actual touching. A case in the First Circuit, United States v. Wallace (2006), involved a defendant who blocked the victim’s path when she tried to escape and ordered her at gunpoint to stop. The court stated that the aggregate of the circumstances left “no doubt” that the one victim was physically restrained. 

The Second, Fifth, Seventh, Ninth, and D.C. Circuits hold differently, requiring “restraint” to involve actual physical contact. The Second Circuit in United States v. Taylor (2020) vacated the district court’s application of the sentencing enhancement and established its own standard in doing so. According to the Second Circuit, a finding of physical restraint is based on three factors: 1) the restraint must be physical (as opposed to mental); 2) it must be restraint, and not force, restricting the victim’s freedom of movement; and 3) it must be more than a direction to move that is typical of most robberies, given that it must facilitate—not constitute—the offense. Under those factors, “herding victims into a defined area” does not qualify as physical restraint. The court stressed in its reasoning that the enhancement should not be given excessive application to the point where it could apply to virtually every robbery (in which case the only instances the enhancement would not apply would be where the premises was unoccupied or where the robber actually instructed the victims that they should feel free to move about or leave).

The Fifth Circuit in United States v. Garcia, the Seventh Circuit in United States v. Herman, and the D.C. Circuit in United States v. Drew each stress the importance of the word “physical” as a modifier of “restraint.” The Fifth Circuit noted that “restraint” by itself may have many forms (physical, mental, moral, etc.) and that the word “physical” is doing at least some work. The D.C. Circuit similarly commented that physical restraint “must, as the language plainly recites, be physical.” The Seventh Circuit stated that “(w)ords should mean something . . . that the Guidelines call for physical restraint tells us that not all restraints warrant the two-level enhancement.” In other words, the Seventh Circuit has adopted a standard of looking at the defendant’s actions, not the victim’s inactions. 

LOOKING FORWARD

Congress intended the USSC to establish Guidelines that bring about more consistency in sentencing, not less. The “physical restraint” sentencing enhancement is a topic that is ripe for review, as circuit courts have divided on this issue. Even circuits in agreement have engendered their own distinct tests. The Supreme Court to date has denied certiorari to cases involving this subject. The Court must address the circuit split to resolve this issue and provide jurisprudential consistency. Until it does, criminal defendants will be given disparate sentences based on the jurisdiction in which they are convicted.

 

 

Accuracy v. Finality: The Implications of Habeas Rights Based on AEDPA Interpretations

BACKGROUND

With the release of the film Just Mercy, the debate over balancing the prevention of wrongful convictions against the assurance of finality in serious criminal matters has once again come into the spotlight. This dispute is not only receiving national attention in pop culture, but is also making headlines in the judicial field with the emergence of a new circuit split.

A habeas petition is a method invoked by prisoners seeking an early release by challenging the legitimacy of their detention. In 1996, the ability to file habeas petitions was limited with the passage of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, a prisoner has just one opportunity to file a motion to vacate the earlier sentence. A second opportunity is permitted only when the Supreme Court adopts a new and favorable rule of constitutional law. Prisoners are also restricted to just one habeas petition, unless they can demonstrate that AEDPA’s remedy is “inadequate or ineffective.”

THE ISSUE

Can the AEDPA remedy be considered inadequate or ineffective, thereby circumventing the single habeas restriction, when a new rule of statutory construction is adopted by a circuit court?

THE SPLIT

In Hueso v. Barnhart (2020), the Sixth Circuit split from the Fourth Circuit, interpreting AEDPA to increase restrictions on habeas rights. Hueso was convicted of drug trafficking in Alaska. He was initially sentenced to 10 years in prison; however, the term was doubled under a federal sentencing law. The year after his conviction, the Supreme Court rejected the interpretation permitting doubling. At the time, Hueso’s counsel had already filed a Motion to Vacate challenging evidence, which was rejected. Counsel then filed a habeas petition based on the Supreme Court ruling. The court denied the petition based on Sixth Circuit precedent that barred habeas cases from entertaining challenges based on sentencing. However, in 2016, the Sixth Circuit overturned its previous holding, thereby permitting sentencing-based habeas petitions.

As a result, Hueso’s counsel filed another habeas petition, but this time it was rejected under AEDPA. Hueso appealed to the Sixth Circuit, arguing that he should be permitted to file a second habeas under AEDPA because the AEDPA remedy was inadequate and ineffective. The Sixth Circuit denied the appeal on two bases. First, the Sixth Circuit reasoned that the Supreme Court ruling rejecting double sentencing could not be introduced in a subsequent challenge as the decision was made while Hueso’s first Motion to Vacate was pending. The court reasoned that the decision was available at the time of the challenge and, therefore, the failure to mention it barred a second attempt. Second, the Sixth Circuit held that the second habeas petition was correctly denied because the basis of the petition centered on a circuit court decision to permit sentencing-based habeas petitions. The Sixth Circuit rationalized that this decision was not constitutional law, as required under AEDPA, and thus could not be a basis for seeking to file subsequent petitions.

The Sixth Circuit’s reasoning diverged from the Fourth Circuit’s prior interpretation in United States v. Wheeler (2018). Wheeler was charged with conspiracy to possess with intent to distribute cocaine and possession of a firearm. Wheeler entered into a plea deal, agreeing to an enhanced sentence with a mandatory minimum of 120 months. The next year, Wheeler’s counsel filed a Motion to Vacate, citing both inefficient counsel and the fact that the conviction did not qualify for an enhanced sentence. The Motion was denied based on Fourth Circuit precedent allowing a maximum aggravated sentence to be imposed. Wheeler’s counsel sought to appeal by filing a certificate of appealability. While the appeal was pending, the previous precedent relied upon was overturned by the Fourth Circuit with a finding that a district court could only consider the maximum sentence that the particular defendant could receive in enhanced sentence matters. However, Wheeler’s appeal was still denied based on the reasoning that the new decision could not be applied retroactively.

Wheeler’s counsel subsequently filed a habeas petition, arguing that the AEDPA remedy was inadequate and ineffective. In this case, the Fourth Circuit upheld the inadequacy on appeal. The court reasoned:

“[W]e conclude that [AEDPA] is inadequate and ineffective to test the legality of a sentence when: (1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; subsequent to the prisoner’s direct appeal and first … motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping requirements … for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.”

LOOKING FORWARD

Following the Wheeler decision, the Solicitor General, on behalf of the United States, filed a writ of certiorari with the United States Supreme Court. The petition was denied in March 2019, before the split emerged. The developing split has the potential for unfortunate consequences for prisoners based solely on the region they are imprisoned in. The split will inevitably result in disparate results concerning a prisoner’s rights to seek relief and retrial in the case of wrongful convictions. In the Sixth Circuit, Judge Karen Nelson Moore acknowledged the disparity in her dissent, pointing out that Hueso would “almost certainly prevail” had he attacked his sentence the first time, and noting that, as a result of the majority interpretation, Hueso would be spending another decade incarcerated.

Competing Branches: Judicial Scrutiny and Presidential Commutation of Prison Sentences

Background

Presidential commutation, or reduction, of prison sentences is a well-established power of the executive branch. Article II of the United States Constitution gives the President the “power to grant Reprieves and Pardons” for criminal offenses against the United States. U.S. Const. art. II, §2. However, the implications of such an action on the judiciary’s subsequent ability to grant a writ of habeas corpus are yet to be determined.

A writ of habeas corpus permits an inmate to have his or her case reviewed by a court to determine whether the imprisonment is lawful. If there have been changes in law relevant to the case, or if for any number of reasons, the inmate believes the original sentence may no longer hold, he or she may ask that a court hear the claim. Relatedly, Article III of the Constitution provides an important constraint on the authority of the judiciary, declaring that courts cannot hear a moot issue. In other words, the conflict before the court has to be one that is “live,” or where the parties still have a “cognizable interest in the outcome.”

The Issue

The question, then, is what happens once a prisoner’s sentence has been reduced by presidential commutation?

1.         Does any appeal by the affected inmate for review become moot, divesting the judiciary of its power to grant writs of habeas corpus?

2.         Does the judiciary still have the authority to review that case, or has it been transformed from a judicial sentence to an executive one?

The Split

In recent years, cases before the Fourth and Sixth Circuits have raised these exact questions. The circuit courts are split, with the Fourth Circuit taking a seemingly narrow view of its jurisdictional scope, while the Sixth Circuit applies its authority more broadly.

In United States v. Surratt (2017), the Fourth Circuit held that presidential commutation — in this case, shortening a sentence for crack cocaine possession from life to 20 years — divested the court entirely of its power to review the case. Though the ruling features only a two-sentence opinion, the concurring opinion explains the logical merits. It states, “absent some constitutional infirmity in the commutation order, which is not present here, we may not readjust or rescind what the President, in the exercise of his pardon power, has done.” It asserts that the nature of the sentence has been transformed by the action, and that the prisoner is no longer serving a judicially imposed sentence, but a presidentially commuted one — to interfere with that would be to act outside of the court’s jurisdictional purview. In the court’s view, the inmate had accepted the offer made by the President, which created finality in the decision, thus precluding the court from further intervention.

Deviating from this opinion, in Dennis v. Terris (2019), the Sixth Circuit found that such an exercise of presidential power does not take away from the judiciary’s authority to grant a writ of habeas corpus. The court acknowledged the executive’s power, but refused to accept the position that the “altered sentence becomes an executive sentence in full, free from judicial scrutiny with respect to mistakes the courts may have made.” In this view, there is no overlap between the power exercised by the executive and the authority the court is asked to assert. Here, the question is not whether the commutation should be amended, but rather whether the original sentence itself would hold up under scrutiny and application of modern law. The argument made by this court is that a commutation or pardon by the President does not change the nature of or eliminate the original sentence. Say, for example, an inmate’s sentence is commuted with the added condition that the inmate maintain good behavior. If that condition is not met, the commutation is revoked and the original sentence takes effect once again. The original sentence remains in place all along, “ready to kick into full effect if the recipient violates the conditional cap.” Likewise, the sentence is, all along, subject to be amended by the court system that imposed it. Moreover, the court argues that a commuted sentence is, on principle, not rendered moot. Commutation does not take away any interest the inmate has in seeking relief for the remainder of his or her sentence. If a court were to find the inmate’s sentence unlawful, then the original sentence would simply go away. In other words, the conflict is still “live,” giving the court jurisdiction to revise and reevaluate the legality of its own past decisions.

Looking Forward

The power of a President to shorten or forgive the sentences of prisoners is an exercise in fairness that dates back to the creation of the U.S. Constitution, and has played a role in the criminal justice system ever since. This current split reveals a fundamental difference in how the courts view their roles as part of the judiciary. Whether or not an overlap between branches of government is formed by an executive action is a question of constitutional interpretation that carries serious consequences for how justice will be carried out across the United States in the future.

The Tapia Tap Dance: When Does Considering Rehabilitation in Imposing a Sentence Violate Tapia?

BACKGROUND

In 1984, Congress passed the Sentencing Reform Act, as part of the Comprehensive Crime Control Act. The Act, among other things, abolished federal parole in all but a few instances and created the United States Sentencing Commission. It also required courts to consider the factors outlined in 18 U.S.C. § 3553(a)—which include the nature of the crime, the characteristics of the defendant, the justification for the sentence, the kinds of available sentences, any relevant policies promulgated by the Sentencing Commission, the need for consistency, and the value of any potential restitution to victims.

However, §3582 of the Act went one step further. In a nod to concerns about excessive prison sentences imposed during the height of the War on Drugs, it provided that the above factors should be considered while also “recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.” In Tapia v. United States (2011), the Supreme Court interpreted that provision of the Act to mean that “the Sentencing Reform Act precludes federal courts from imposing or lengthening a prison term in order to promote a criminal defendant’s rehabilitation.”

THE ISSUE

What is the standard for determining when a sentencing court violates Tapia? When a court considers rehabilitation in imposing a sentence at all, does it violate Tapia? Or is Tapia only violated when a sentencing court uses rehabilitation as the determining factor?

THE SPLIT

As it turns out, every Circuit in the country—save for the D.C. Circuit—has taken a position on this issue. They’re divided into two camps.

The Seventh, Ninth, Tenth, and Eleventh Circuits apply an easy-to-satisfy standard: they hold that Tapia is violated when the sentencing judge even considers rehabilitation or bases his sentence even in part on rehabilitation. As articulated by the Tenth Circuit in United States v. Thornton (2017), for example, “A rule requiring reversal only when rehabilitation is the sole motivation would not make sense. The federal sentencing statute mandates that judges consider other factors. . . . Therefore, there will almost always be some valid reasons advanced by the district court for imposing the sentence issued.” The Eleventh Circuit in United States v. Vandergrift (2014) arrived at the same conclusion, and based its analysis on an interpretation “faithful to Tapia’s reasoning.” It noted that the Supreme Court held that sentencing courts “‘should consider the specified rationales of punishment except for rehabilitation’” when “determining whether to impose or lengthen a sentence of imprisonment.” Accordingly, any consideration of rehabilitation is improper.

The First, Second, Third, Fourth, Fifth, Sixth, and Eighth Circuits come out differently. For a sentencing court to run afoul of Tapia, they require a demonstration that rehabilitation was the determining factor in the sentencing court’s decision to impose or enhance a sentence in order to find a Tapia violation. They, too, base their rationale in the Supreme Court’s language in Tapia. For example, in United States v. Garza (2018), the Fifth Circuit noted:

in Tapia the Court made clear that “[a] court commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs.” A district court also may legitimately “urge the [Bureau of Prisons] to place an offender in a prison treatment program.” However, when the district court’s concern for rehabilitative needs goes further—when the sentencing record discloses “that the court may have calculated the length of [the defendant’s] sentence to ensure that she receive certain rehabilitative services”—§ 3582(a) has been violated.

Similarly, in United States v. Bennett (2012), the Fourth Circuit focused on looking at the specific error that the Supreme Court was attempting to remedy in Tapia. To glean the Supreme Court’s meaning, it looked at the sentencing court’s proceedings in Tapia and observed that the district court judge said that the “‘number one’ consideration ‘[was] the need to provide treatment.’” It observed that the Tapia decision was a “close question . . . whether the rehabilitation rationale drove the sentencing decision,” despite the sentencing court’s brazen discussion of rehabilitation. Accordingly, the Court couldn’t possibly mean that a district court judge’s mere discussion of rehabilitation ran afoul of Tapia.

The Third Circuit, which arrived at a conclusion on the proper interpretation of Tapia only ten days ago, articulated a related—but distinct—rationale. It noted in United States v. Schonewolf (2018) that that the first approach, taken by the Seventh, Ninth, Tenth, and Eleventh Circuits, would “risk a chilling effect on district courts ‘discussing the opportunities for rehabilitation within prison,’ a subject that ‘a court properly may address.’”

LOOKING FORWARD

Given that virtually every Circuit in the country has arrived at a conclusion on the meaning of Tapia—and that those meanings differ and are supported by different rationales—the Supreme Court has a strong incentive to take an appeal from one of these cases to resolve the split. Even more persuasively, the Sentencing Reform Act was intended to promote consistency in sentencing across the country. It’s a cruel twist of irony for the drafters of the Act that it, in turned, spurred even more inconsistency.

Reading the Fifth: Supreme Court Exercises its Right to Remain Silent on What Comprises a “Criminal Case”

BACKGROUND

The Self-Incrimination Clause of the Fifth Amendment protects individuals from being compelled to bear witness against themselves in a criminal case. Courts have struggled with the scope of this protection, particularly regarding what comprises a “criminal case.” Does the term extend to pre-trial proceedings, such as a bail hearing? Has a person’s Fifth Amendment right against self-incrimination been violated if the compelled statement in question is never used in a court of law?

Over the past thirty years, the Supreme Court has never directly resolved the question of what constitutes a “criminal case.” In dicta from United States v. Verdugo-Urquidez (1990), the Supreme Court indicated that the Fifth Amendment right was merely a trial right. But later, in Mitchell v. United States (1999) the Supreme Court indicated that the right extended to sentencing hearings.

The question of what comprises a criminal case was more recently addressed in Chavez v. Martinez (2003). In his plurality opinion, Justice Clarence Thomas declared that a statement was not a violation of the Fifth Amendment right against self-incrimination where the individual first hadn’t been charged with a crime and where the individual’s statements had not been used in a criminal case. Thomas further wrote:

“Mere coercion doesn’t violate the self-incrimination clause minus use of compelled statements in a criminal case against the witness…a ‘criminal case’ at the very least requires the initiation of legal proceedings.”

Three other justices disagreed, arguing that self-incrimination is complete the moment a confession is compelled, regardless of whether the statement is used at trial.

After the opinions in Chavez were released, a circuit split developed over the definition of a criminal case under the Fifth Amendment.

THE ISSUE

Does the Fifth Amendment right against self-incrimination include statements compelled in pre-trial proceedings?

THE SPLIT

The Third, Fourth and Fifth Circuits resolved this question in favor of Justice Thomas’s view, holding that the right against self-incrimination is only a trial right. In Renda v. King (2003), the Third Circuit determined that questioning while in police custody without providing Miranda warnings is not a Fifth Amendment violation if the individual is never charged with a crime and their responses are never used in a trial.

But on the other hand, in Vogt v. City of Hays (2017) the Tenth Circuit resolved this question in favor of a broader reading of the term “criminal case,” allowing the term to include certain pre-trial proceedings. The Second, Seventh, and Ninth Circuits take a similar view of the right against self-incrimination.

The facts of Vogt are unusual. In Vogt, a police officer for the City of Hays admitted during an interview with a neighboring police department that he had illegally retained a knife obtained during his employment as a police officer. The neighboring police department agreed to hire Vogt on the condition that he report the illegal retention of the knife to the Hays police department. Upon Vogt’s admission, Hays initiated a criminal investigation against him. The charges were dropped, but Vogt sued, claiming that the state violated his Fifth Amendment right against self-incrimination by inducing him to confess.

The Tenth Circuit in Vogt concluded—after examining the text of the Fifth Amendment and the Founders’ intent—that the right against self-incrimination includes pre-trial proceedings. The court noted that the Fifth Amendment makes no mention of “trial” or “criminal prosecution,” instead using the term “criminal case.” The court pointed to Counselman v. Hitchcock (1892) wherein the government argued that a witness could not invoke the Fifth Amendment in a grand jury proceeding because it was not a “criminal case.” The Supreme Court rejected the government’s argument there, holding that the “criminal case” of the Fifth Amendment is a broader term than the Sixth Amendment’s “criminal prosecution.”

Additionally, to determine the meaning of “criminal case,” the Tenth Circuit consulted the most prominent dictionary of the Framers’ era: purportedly Noah Webster’s An American Dictionary of the English Language. In this dictionary, “case” was defined as “a cause or suit in court.” This definition, where “suit” is understood to be nearly synonymous with “cause,” indicates that the Framers understood the criminal case to encompass more than merely the trial. From these facts, Tenth Circuit concluded that the right against self-incrimination is more than just a trial right.

LOOKING FORWARD

The City of Hays appealed the Tenth Circuit’s decision in Vogt, and the Supreme Court granted certiorari on September 28, 2017. The case was argued before the Court on February 20, 2018; however, whether this split will be resolved by the Vogt appeal is yet to be seen. Justices Samuel Alito and Sonia Sotomayor both noted the case was “odd,” and Justice Breyer even questioned whether the strange and distinguishing facts of Vogt made it an appropriate one for the Court to take. The Supreme Court has the option to dismiss the case as improvidently granted, but it is likely that the Court will publish an opinion resolving this constitutional issue soon.

On a constitutional question of this magnitude, let’s hope the Supreme Court doesn’t choose to plead the Fifth.

Does Pre-Trial Detention Toll a Term of Supervised Release?

Supervised Release

For some people who are convicted of a criminal offense, a sentence can include a term of supervised release (also known as special or mandatory parole). Under 18 U.S.C. § 3624, the federal supervised release statute, a term of supervised release begins on the day that a person is released into the custody of a parole officer. The federal supervised release statute also provides that the term of supervised release is tolled during any period where the person is imprisoned in connection with a conviction for a different federal, state, or local crime.

The Issue

Jason Mont began a five-year period of supervised release on March 6, 2012. On June 1, 2016, Mr. Mont was arrested on state charges and held in pre-trial detention until he pleaded guilty in October 2016. In June 2017, Mr. Mont’s supervised release was revoked, and he was ordered to serve an additional 42 months for violating his supervised release. In United States v. Mont (2018), Mr. Mont claimed that the court did not have jurisdiction to revoke his supervised release, arguing that his supervised release ended on March 6, 2017 (five years after he was initially released). Following circuit precedent established by United States v. Goins (2008), the Sixth Circuit held that pretrial detention that leads to a conviction counts as time “in connection with a conviction,” as described in the federal statute.

The Split

Several circuits have spoken to whether time served in pretrial detention counts as time “in connection with a conviction” for the purposes of the federal supervised release statute, in addition to the Sixth Circuit’s previous ruling in Goins. The Fourth Circuit in United States v. Ide (2010), the Fifth Circuit in United States v. Molina-Gazca (2009), and the Eleventh Circuit in United States v. Johnson (2009) have all held that pretrial detention counts for the purposes of the federal supervised release statute. In contrast, the D.C. Circuit in United States v. Marsh (2016) and the Ninth Circuit in United States v. Morales-Alejo (1999) held that time served in pretrial detention does not qualify.

The Ninth Circuit is the only circuit that has directly addressed the statutory language in the federal supervised release statute:

“A plain reading of this language…suggests that there must be an imprisonment resulting from or otherwise triggered by a criminal conviction. Pretrial detention does not fit this definition, because a person in pretrial detention has not yet been convicted and might never be convicted.”

In Mont, the Sixth Circuit explicitly rejected this interpretation.

Looking Forward

This case has not attracted much attention within the legal community since the Sixth Circuit’s ruling was handed down this past February, but it does have important ramifications for persons whose sentences include a period of supervised release. With six circuits having weighed in on opposite sides of a matter of federal statutory interpretation, the time is ripe for an aggrieved party to petition the Supreme Court for a definite ruling on this issue. Mr. Mont has ninety days from the date of the Sixth Circuit’s judgment to file a writ of certiorari to the Supreme Court – while this deadline has not passed, it is not yet clear whether he will file a petition. In the alternative, given that this issue arises out of different interpretations of a federal statute, Congress could pass a bill to amend the current statute and clarify whether pretrial detention that leads to a conviction counts as time served in connection with a conviction.

Agree to Disagree: Defining Submission to Police Authority

Issue

The Fourth Amendment of the Constitution protects against unwarranted searches and seizures, which begs the question—what exactly constitutes a seizure? In California v. Hodari D. (1991), the Supreme Court held that a “seizure” requires either physical force or submission to police authority. In the wake of this decision, circuit courts have struggled to define the phrase, “submission to police authority,” resulting in a split of authority. The emergent view in the Courts of Appeals, although admittedly uneven within the circuits, is that when a suspect does nearly anything more than pausing briefly, including any significant verbal engagement with the officer, that action is strong evidence of submission.” United States v. Camacho (1st Cir. 2011). Some courts have adopted this rather broad interpretation of the term, imparting a low standard for submission. Other courts have adopted a narrow view, requiring additional conduct to meet the standard.

The issue of defining submission is incredibly significant because of its impact on other aspects of a case. For example, whether or not a defendant is deemed to have submitted to police authority can determine what evidence may be presented at trial, which can significantly influence the outcome of a case. The Fourth Amendment serves to protect against unwarranted invasions of privacy by requiring probable cause. The Fourth Amendment “prohibition on unreasonable searches and seizures is enforced through the exclusionary rule, which excludes evidence seized in violation of the Fourth Amendment.” United States v. Camacho (1st Cir. 2011).

The Split

The following circuits have adopted the view that brief compliance followed by flight does not constitute submission.

  • Second Circuit: In United States v. Huertas (2d Cir. 2017), the court held that, in dealing with the police, conduct that amounts to evasion cannot be considered submission.
  • Third Circuit: In direct contradiction with the Tenth Circuit’s ruling, the court in United States v. Valentine (3d Cir. 2000) held that a brief pause does not make for a submission, and therefore the defendant in this case was not seized within the Fourth Amendment meaning.
  • Ninth Circuit: In United States v. Hernandez (9th Cir. 1994), the court rejected the defendant’s argument that he was “seized” because he briefly submitted to the police officer’s show of authority before fleeing. The court here requires a discernible showing of compliance to constitute submission:

“We decline to adopt a rule whereby momentary hesitation and direct eye contact prior to flight constitute submission to a show of authority. Such a rule would encourage suspects to flee after the slightest contact with an officer in order to discard evidence, and yet still maintain Fourth Amendment protections.”

The following circuits have adopted the view that brief compliance followed by flight does constitute submission.

  • First Circuit: In United States v. Camacho (1st Cir. 2011), the court held that once a defendant responds to questions posed by the police, he or she has submitted to police authority.
  • Tenth Circuit: In United States v. Morgan (10th Cir. 1991), the court held that even the slightest form of compliance, in this case, a momentary hesitation, is enough to constitute submission. The court explains its reasoning as follows:

“Here, the intrusion on Mr. Morgan in regard to the initial attempted questioning by Officer Eubanks and the subsequent exchange between the two was minimal. However, since Officer Eubanks had followed the car in which Defendant was a passenger for several blocks with his red lights flashing; since Officer Eubanks exited from a marked police car, in uniform, and asked the Defendant to hold up; and since Defendant, at least momentarily, yielded to the Officer’s apparent show of authority, we find Mr. Morgan was seized for purposes of the Fourth Amendment during the initial portion of the encounter.”

  • D.C. Circuit: In United States v. Brodie (D.C. Cir. 2014), the court ruled that when a defendant complies with an officer’s orders by engaging in overt acts, such as putting one’s hands on the car, the defendant has submitted to police authority.

Looking Forward

Although the Supreme Court expressly outlined the requirements for a “seizure” in California v. Hodari D. (1991), it still left some questions unanswered—circuit courts were tasked with the responsibility of defining “submission to police authority,” and conflicting rulings resulted. Branden Huertas submitted a petition for writ of certiorari to the Supreme Court in December 2017, in hopes of appealing the Second Circuit’s decision in United States v. Huertas (2017). In the petition, Huertas discusses the split among the lower courts and urges the Supreme Court to review the issue. In his petition for a writ of certiorari to the U.S. Court of Appeals for the Second Circuit, Huertas notes: “The conflict is widely recognized by courts and commentators. It also is deeply entrenched; the courts on either side of the split have acknowledged the contrary reasoning of their peers and have had multiple opportunities to reconsider their positions, but the conflict has persisted. Thus, only this Court can restore uniformity on this important question of Fourth Amendment law.” For further reading, see the petition for writ of certiorari: Huertas v. United States.

Card Declined: The Credit Card Fraud – Crime Sentencing Transaction

The Issue

Wire fraud, an intentional act to defraud another individual or entity of property (usually money) through electronic means, is becoming an increasingly common and widespread crime in the United States. According to a study by Javelin Strategy & Research in partnership with LifeLock, Inc., approximately 15.4 million consumers were victims of identity theft or fraud in 2016, up 16 percent from 2015, and more than ever recorded by the firm. Obtaining credit card numbers, encoding them on blank cards, and making purchases or withdrawals from automated teller machines (ATMs) has become a favorite medium of crime among fraudsters. When determining how a perpetrator of wire fraud should be sentenced for possessing credit cards that are canceled, expired or attached to an account from which all funds have been successfully siphoned, a key issue is whether the “access device” is in fact usable by the perpetrator.

The Split

Credit cards that have been encoded with stolen numbers and used fraudulently are governed by 18 U.S.C. § 1029(e)(1) and (e)(3). Of particular importance, Application Note 3(F)(i) of § 2B1.1 of the sentencing guidelines says in cases involving “unauthorized access devices,” in this case credit cards, “loss includes any unauthorized charges made with the counterfeit access device.”

The Ninth Circuit ruled on this issue in 2012, when it considered United States v. Onyesoh, which explored access device fraud under 18 U.S.C. § 1029 and whether the government must prove the usability of an expired credit card number in order for a district court to increase the severity of a sentence. In Onyesoh, the Ninth Circuit held that unauthorized access devices must be usable:

An “unauthorized access device” must be an “access device,” which itself must be capable of obtaining “money, goods, services, or any other thing of value.” 18 U.S.C. § 1029(e)(1) and (e)(3). The statute’s language is clear and we give it full effect—unauthorized access devices are a subset of access devices, and therefore must be capable of obtaining something of value…The statute is intended to target major fraud operations instead of individual [fraud]…But the kind of devices potentially covered by the statute says nothing about the quantum of proof necessary to establish usability. The legislative history simply does not address that issue. No court, in this or any other circuit, has read usability out of the statute.

But in deciding United States v. Popovski at the end of 2017, the Seventh Circuit changed the score. Judge Easterbrook adopted the Sixth Circuit’s 2015 decision in United States v. Moon, arguing that the statute and note must be read together:

[T]he definition of “unauthorized access device” in § 1029(e)(3) includes “any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud”. This necessarily implies that a card, number, or other identifier with a potential to obtain goods or initiate a transfer of funds remains an “access device” even if it is “expired, revoked, [or] canceled.” These two statutory paragraphs can work together only if paragraph (1) defines an “access device” according to its nature—the sort of thing that could in principle be used to get goods or funds, whether or not it would work in practice…. If a calculation under Application Note 3(F)(i) overstates the seriousness of the offense, a district judge must adjust accordingly. That process, rather than warping the language of § 1029(e), is the way to avoid the Ninth Circuit’s parade of horribles.

While the Ninth Circuit’s decision was likely predicated on a desire to prevent obtuse sentences for criminals who possessed but did not use expired credit card numbers, Judge Easterbrook’s scathing critique of the Ninth Circuit made clear that the Seventh Circuit, like the Sixth Circuit, will not cut financial criminals any sentencing slack:

Like the panel in Onyesoh, we too think that a district judge should not increase a sentence just because the defendant possessed ancient pieces of plastic or lists of numbers useful only during the reign of Xerxes. But we disagree with Onyesoh’s view that this result should be achieved by treating the language in § 1029(e)(3) as irrelevant to the meaning of “access device”. Courts must read the statute to reconcile these paragraphs.

Looking Forward 

After a new sentencing hearing, the Ninth Court of Appeals and the Supreme Court denied Onyesoh’s petition for a writ of certiorari.  Certiorari is currently pending for Popovski, but the Supreme Court has not expressed interest in ruling on the case in the current session.

Judge Easterbrook, in deciding United States v. Popovski, came down hard on the Ninth Circuit’s interpretation of the sentencing law regarding this sort of wire fraud. He argued, in part, that district judges can come to a workable resolution under the current law without disregarding any specific portion of the statute. Following Judge Easterbrook’s logic, it seems unlikely that this issue will pique the Supreme Court’s interest. Nevertheless, if credit card fraud continues to rise at record levels and continues to emerge as the cause celebre of the consumer crime world, constituent pressure may push Congress to act.