Category Archives: criminal

When Keeping Kids Is a Crime

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Hammack v. State, No. PD-0636-19, Tex. Crim. App. May 19, 2021. Judge Newell wrote for the 7-2 majority; Presiding Judge Keller and Judge Keel dissented.

Michael Anthony Hammack was convicted of the crime of interference with child custody and sentenced to five years’ probation. On appeal, he argued that the evidence was legally insufficient to convict him because there was no proof he knew the express terms of the order he was charged with violating. The Texarkana Court of Appeals affirmed the conviction, as did the Texas Court of Criminal Appeals.

Hammack was charged and convicted of interference with child custody. The Penal Code makes it a state jail felony to “take[] or retain[] a child younger than 18 years of age” if the person taking or retaining the child “knows that [doing so] violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody.” Tex. Penal Code § 25.03(a)(1), (d).

I want to point out that neither the majority nor the dissent discussed the taking-or-retaining element in any depth. According to the majority’s recitation of the facts, Hammack’s daughter escaped CPS custody and went to her grandmother’s. Even if she wound up in Hammack’s physical custody, one could argue that he never took her from CPS’s custody. Was it sufficient that he “took” her from her grandmother’s? The court doesn’t say.

Instead, the appeal focused on Hammack’s knowledge of the express terms of the order he violated. Hammack did not challenge the existence of the order or that he violated it. He conceded that CPS had obtained an emergency order giving CPS temporary custody of his 16-year-old daughter. He also conceded that he violated that order by keeping the girl for about a week after she “escaped” CPS custody. (Among other things, he chased CPS out of his mother’s house, where the girl was staying, and took her to Oklahoma for a shotgun wedding to her 18-year-old boyfriend.)

Instead, Hammack challenged his conviction on the ground that he could not have known that keeping the girl for a week “violate[d] the express terms” of the order because he had not been formally (or informally) served with the order or told its express terms.

The majority concluded that he had been told the express terms and held that formal service of the order violated is not an element of the crime of interference with child custody. The statute only requires proof that the defendant knew his conduct violated the express terms of the order. While proof of service “may provide sufficient evidence of knowledge in a given case,” it is not necessary in every case. The State can also carry its burden with circumstantial evidence. In this case, the State presented evidence that Hammack was told about the order on three different occasions, including specifically the “express term” that gave CPS custody.

The dissent disagreed about whether he was told the express terms of the order. The dissent emphasized the distinction between being told that CPS had “custody” and being told that CPS had “sole custody.” Here, Hammack was told several times that CPS had been given “custody,” not “sole custody.” Without that key word (“sole”), the dissent would have determined that there was not sufficient evidence to support the conviction.

The majority took some pains to distinguish Tex. Penal Code § 25.07 and Harvey v. State, 78 S.W.3d 368 (Tex. Crim. App. 2002). Section 25.07 criminalizes the violation of a list of “statutorily defined orders, each one having specific notice requirements, among them actual service, necessary to make each respective order ‘binding’.” Section 25.03, on the other hand, criminalizes the violation of custody orders, which may or may not require prior notice to be binding. For example, an ex parte CPS removal order is binding with or without service for up to 14 days. See Tex. Fam. Code § 262.102, 103.

In sum—formal service of the violated order is not an essential element of the crime of interference with child custody. Though the state must prove knowledge of the express terms of the order, it may do so through circumstantial evidence, such as testimony by a witness that she told the offender about the order in sufficient detail that he knew what its express terms required.

How Not to Keep a Secret

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The case of the week is Denny v. State, No. 11-18-00270-CR, ___ S.W.3d ___ (Tex. App.—Eastland Oct. 30, 2020, no pet. h.) (Google Scholar, Slip Opinion).

Reversals on appeal in criminal cases are rare. When they do happen, it’s usually because of some procedural problem in the courts below—an unconstitutional search, an unreliable confession, an unfair trial. Reversals on sufficiency grounds—there wasn’t enough evidence to convict—are exceedingly, vanishingly rare. But the argument continues to be made because of cases like this one.

In August 2012, an unresponsive child was taken to Abilene Regional Medical Center. The hospital called CPS, which sent Investigator Tapia to check on the other children in the home. As she was leaving, the child in the hospital was pronounced dead. Sergeant Beard with the Abilene Police Department took a photograph (a digital photograph) of the child and sent it to Tapia’s supervisor, McDaniel. McDaniel showed the APD photo to Tapia (to prepare her for what she might find) and sent a copy to her supervisor, Gretchen Denny. When Tapia arrived at the home, she determined that the children needed medical attention.

Tapia took the children to the hospital and wanted to show the APD photo to medical staff, “[h]oping that the photograph would help the medical staff diagnose and treat the two children.” Slip Op. at 3. But Tapia didn’t actually have the APD photo; she had only seen it on McDaniel’s phone. Tapia asked McDaniel to send her the photo. McDaniel checked with Denny, who said “No . . . delete it.” Slip Op. at 3. Meanwhile, Sergeant Beard sent the APD photo to Detective Shoemaker, who was at the hospital. The opinion is silent on whether Shoemaker showed the APD photo to the medical staff or whether it helped medical staff diagnose and treat the children’s injuries.

The fallout from this case was huge. The mother of the children was sentenced in 2014 to 30 years in prison. The father of the children (who was on deployment  with the Air Force at the time) was prosecuted through the Air Force and initially sentenced to 3 years’ confinement on one count of adultery and three counts of child neglect. The regional supervisor for CPS was indicted, though the charges against her were ultimately dismissed.

And Gretchen Denny was indicted in December 2015 for concealing evidence in violation of Tex. Penal Code § 37.09(a)(1). She was convicted by a jury in April 2018 and sentenced to six years’ confinement, with the sentence suspended and community supervision imposed for six years. She appealed and argued, among other things, that the evidence was insufficient to support her conviction.

The first hurdle in a sufficiency challenge is pretty high. The court of appeals must consider “all of the evidence admitted at trial,” both direct and circumstantial, and “including evidence that may have been improperly admitted.” Slip Op. at 4. When there are conflicts in the evidence, the court of appeals will “defer to the jury” and “presume that the jury resolved the conflicts in favor of the verdict.” Slip Op. at 4. Finally, the court will compare the evidence, including its “combined and cumulative force,” to the “hypothetically correct jury charge” to determine whether “a rational jury could find each essential element of the offense beyond a reasonable doubt.” Slip Op. at 4 (citing Jackson v. Virginia, 443 U.S. 307 (1979); Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)).

In this case, the hypothetically correct jury charge would have required the jury to find that she actually concealed the APD photo by directing CPS personnel to refuse to provide it. Slip Op. at 6. But, she argued, CPS got the APD photo from the APD, so she could not possibly have concealed the APD photo from the APD. The court of appeals agreed:

Independent of whether law enforcement in this case spoke to Appellant or any other CPS investigator, law enforcement knew that the photograph existed and knew that they had a copy of it. Law enforcement had no difficulty locating the photograph in question. In fact, the evidence established that the photograph was already in the possession of the APD, and Detective Shoemaker ultimately received a copy of the photograph from Sergeant Beard.

Slip Op. at 8. Accordingly, “there is no evidence from which a rational trier of fact could have found beyond a reasonable doubt that the photograph was actually concealed.” Slip Op. at 8. Without any evidence of actual concealment, the evidence was insufficient to sustain a conviction for concealment.

The second hurdle in the sufficiency analysis is equally high. A conviction for one offense (say, concealing evidence) must be “reformed” to a conviction for a lesser included offense (say, attempting to conceal evidence) if “(1) in the course of convicting the appellant of the greater offense, the factfinder must have necessarily found every element of the lesser included offense; and (2) . . . there is sufficient evidence to support a conviction for the lesser included offense.” Slip Op. at 8–9 (citing Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014)). The court of appeals answered the first question without much discussion. Slip Op. at 9.

But as to the second question: “The dispositive question to be decided is whether there was sufficient evidence of a specific intent to conceal the photograph.” Slip Op. at 10. Denny argued that she could not have had the specific intent (or conscious objective) to conceal the APD photo because she knew that APD already had the photo (because she had gotten it from APD) and that she could not possibly conceal the APD photo from APD. In other words, she could not specifically intend something she knew was impossible.

The Texas Court of Criminal Appeals has dealt with this issue before: “it is less likely (though not impossible) that the appellant would harbor a ‘conscious objective’ to cause a result he knew to be impossible.” Thornton, 425 S.W.3d at 305. The line seems to be drawn somewhere around plausibility: “Although Thornton was not likely to succeed in his attempt to hide the pipe, the court found that a jury could reasonably infer that Thornton intended to conceal the pipe based on its material composition, size, and the dimly lit hour of the day.” Slip Op. at 10–11 (citing Thornton, 425 S.W.3d at 305). In other words, what Thornton called an “impossible” result was actually only unlikely one and therefore something he could have intended.

But this case is different:

Here, the object at issue is a digital photograph—something that, by its very nature, is easily copied, shared, and stored in multiple locations. . . . Although it is not impossible for a person to harbor a conscious objective to produce an impossible result—here concealing something from someone who already has a copy—the unique facts surrounding the creation of the photograph by the APD, combined with Appellant’s knowledge about the photograph’s origin, weigh heavily against a finding that Appellant intended to conceal the photograph from the investigation.

Appellant, in her police interview, stated that she knew McDaniel had received the photograph from the APD. Further, the photograph remained in the possession of the APD throughout the investigation: Sergeant Beard took the original photograph and it never left his possession; he eventually sent a copy of it to Detective Shoemaker.

Slip Op. at 11. In other words, concealing a digital photograph from the person who took it is impossible (at least under the facts alleged in this case), so no rational juror could have concluded that she intended to conceal the APD photo from the APD. Without sufficient evidence that she specifically intended to conceal the APD photo, there was not sufficient evidence to sustain a conviction for attempting to conceal.

Gretchen Denny cleared both hurdles on the sufficiency challenge track, so her conviction was reversed.

This case is food for thought in a couple ways. First, what does this mean for future prosecutions for deleting pictures from a phone? Second, what the heck is going on here? I fear that this prosecution went as far as it did because of petty grievances and interpersonal squabbles. Truth be told: one of the greatest dangers to the rule of law is the use of law by local officials to settle personal scores. We must be vigilant not to let that happen.

Sentencing in the Federal System

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A recent case out of the Fourth Circuit—United States v. Bolden, 964 F.3d 283 (4th Cir. 2020)—provides a good illustration of how sentencing works in the federal system.

The Offense

Early in the morning of October 13, 2017 in Burlington, North Carolina, Jermarise Bolden got high on drugs and became paranoid. He “placed two women in a ‘bear hug’, and [began] shooting at shadows on the walls inside the home’s rear bedroom.” Someone called the police about the gunshots. The police arrived and quickly got control of the situation (without shooting anyone). Their protective sweep found two handguns, 2.6 grams of marijuana, and 300 milligrams of cocaine base. Mr. Bolden was eventually taken to a hospital, where he was diagnosed with multiple psychiatric disorders. The Government charged him with one count of being a felon in possession of a handgun, and he pled guilty.

Step 1: The Pre-Sentence Report, or PSR

In the federal system, the sentencing process begins when the probation office prepares a pre-sentence report (or “PSR”) in which it tries to apply the Sentencing Guidelines to the facts of the case and propose a sentencing range. The Guidelines take into account the events (the charged crime as well as relevant uncharged conduct) and the defendant’s criminal history and other characteristics. The events are scored on a point system and all the points are added together to arrive at the Offense Level. Then, the defendant’s interactions with the criminal justice system are assigned points according to rules, those points are summed, and the resulting sum is translated into a Criminal History Category. The Offense Level and the Criminal History Category form the axes of a table in the Sentencing Guidelines, so you take those two, find where they intersect, and there is your “Guidelines range,” usually expressed in months.

Here, the probation office started with the fact that Mr. Bolden pled guilty to being a felon in possession of a handgun. Then, the probation office suggested that an enhancement should apply because he “committed first-degree kidnapping by restraining the two women from the bedroom against their will.” Taken together—the felon in possession charge enhanced by the uncharged relevant conduct of first-degree kidnapping—the probation office recommended a sentence of 120 months (10 years).

Step 2: Objections to the PSR

The second step in the sentencing process: the defendant gets an opportunity to object to the PSR. Here, Mr. Bolden objected to the kidnapping enhancement. The Sentencing Guidelines provide that a sentence will be “enhanced” if the defendant “used or possessed any firearm or ammunition in connection with another felony offense.” USSG § 2K2.1(b)(6)(B). The application notes define “another felony offense” as “any federal, state, or local offense . . . punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.” USSG § 2K2.1 app. n. 14(C). To prove the enhancement, the Government has to prove the other felony by a preponderance of the evidence, not beyond a reasonable doubt. See U.S. v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007). The “other felony” in this case was kidnapping. In North Carolina, a conviction for kidnapping requires a finding that the defendant acted ” ‘for the purpose of’ achieving certain illicit aims.” Slip Op. at 3–4 (citing N.C. Gen. Stat. § 14-39(a)). Mr. Bolden argued that “his mental condition on the morning of October 13 made it impossible for him to form the specific intent required for kidnapping under North Carolina law.” Slip Op. at 3. Without the kidnapping enhancement, the Guidelines range would have been 63 to 78 months (roughly 5 to 7 years).

Step 3: Determining the Sentence

The third step: the sentencing court rules on the objections (if any), hears other relevant material (like victim statements and the defendant’s statement), and considers the factors in 18 U.S.C. § 3553. Here, the sentencing court sustained Mr. Bolden’s objection, but then did something unusual. The sentencing court ruled that Mr. Bolden “had committed ‘a number of crimes’ — including . . . ‘felonious possession of cocaine’ ” that would support an enhancement similar to the one for kidnapping. Putting the enhancement back into the calculation resulted in a Guidelines range of 92 to 115 months (roughly 8 to 10 years). Ultimately, the court sentenced Mr. Bolden to 102 months’ imprisonment (8 years, 6 months).

Step 4: Appeal

The fourth step: appeal. Here, Mr. Bolden challenged the sentencing court’s sua sponte finding about cocaine possession. The court of appeals discussed two issues: the standard of review and the merits.

Step 4a: The Standard of Review

Regarding standard of review: Where the defendant objected below, the standard of review is abuse of discretion; where the defendant failed to object below, the standard of review is for plain error. The Government argued on appeal that Mr. Bolden’s objection below (“that the government had failed to prove that he possessed a firearm in connection with another felony offense”) did not encompass the cocaine enhancement. The Fourth Circuit disagreed. First, Mr. Bolden objected that the Government failed to prove “another felony offense,” not just kidnapping. And second, even if not, the circumstances below did not provide Mr. Bolden with “a meaningful opportunity to object more specifically. . . . [Mr.] Bolden was not required to assert an after-the-fact and formulaic objection in order to preserve the argument he raises here.”

Step 4b: The Merits

Regarding the merits: Because Mr. Bolden objected, the standard of review is abuse of discretion, which is a lower bar than plain error. Abuse-of-discretion review requires the court of appeals to “vacate a sentence as procedurally unreasonable if a district court makes clearly erroneous factual findings in the course of calculating a defendant’s advisory sentencing range.” Slip Op. at 6 (citing United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010)). The problem here is that the sentencing court made no factual findings regarding the connection between possessing the firearm and possessing the cocaine. In cases involving “simple drug possession,” it is not enough that a gun is present or close by. Instead, the gun must have “facilitated, or had the potential of facilitating,” the possession, that it had “some purpose or effect with respect to” the possession. Here, there were no findings about the connection, if any, between possessing the cocaine and possessing the firearm. Accordingly, “on this record—with no district court finding as to facilitation, and no indication of why the district court might have thought there was facilitation here—we are unable to review . . . and must instead vacate the defendant’s sentence and remand for resentencing.” Slip Op. at 11.

Step 4c: The Outcome

Theoretically, there are three possible outcomes: reverse and render, remand for resentencing, affirm. The latter two are by far the most common outcomes. Because the federal sentencing scheme requires the district court to exercise discretion in light of half a dozen factors, the courts of appeals are reticent to reverse one sentence and render another in its place. Instead, the court of appeals most often finds either no abuse of discretion or no plain error warranting remand and simply affirm the sentence below. When they do find error, as in this case, they usually remand back to the sentencing court to try again.

Lying police undermine confession

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This week’s case comes out of the Tenth Circuit: United States v. Young, No. 18-6221, on appeal from the Western District of Oklahoma. It is marked for publication, but I don’t have the cite yet.

Shane Young was driving early one morning in Woodward County, Oklahoma. The police signaled him to pull over, but he delayed stopping for a while. When he finally stopped, he got out of the car and fled on foot. The police caught him and retraced his steps. They found a small headphones case containing 4 grams of meth. They arrested him, but he invoked his rights to counsel and to remain silent and was released before too long.

Later that day, police returned to Mr. Young’s flight path and found something they had missed before: a black bag containing 93 grams of meth. The black bag changes things. Possession of 4 grams has no mandatory minimum prison term, but possession of 97 grams (the headphones case plus the black bag) carries a mandatory minimum of 5 years in prison. 21 U.S.C. § 841(b)(1)(B), (C). They rearrest him. He admits to the 4 grams but not the 93 grams. He asks for a lawyer, so they stop questioning him (but they do not let him go).

Four days later, Mr. Young is still in custody when he meets FBI special agent Kent Brown. Mr. Young tells Agent Brown about how he’s worried about the effect this arrest will have on his life. He has a new baby, etc. Agent Brown says he wants to help and that he’s “on your side.” Agent Brown showed Mr. Young the federal arrest warrant, but told him that he had spoken to the federal judge on the case. According to Agent Brown, the judge was willing to charge Mr. Young “anywhere from five to ten years” for the 4 grams. But Mr. Young could “physically buy down the amount of time you see in federal prison” by “own[ing] to the information.” According to Agent Brown: “every time you answer a question truthfully, it ticks time off that record, it ticks time off how much you’re actually going to see.” In other words, the more meth Mr. Young admitted to possessing, the less prison time he would get. Agent Brown specifically said: “that’s the way it works.”

Mr. Young was a little suspicious, but he didn’t have any experience in federal court. He wondered if he should talk to a lawyer and said he felt “like I’m buying the farm.” But he bought the farm anyway. He agreed with Agent Brown’s suggestion about how the black bag with 93 grams got there and was charged with possession with intent to distribute 97 grams of meth. By owning to the information, Mr. Young increased the amount of time he was likely to see from 0-20 years to 5-40 years.

A lawyer was appointed for Mr. Young after he was charged. The lawyer moved to suppress the confession as involuntary. Involuntary confessions are not admissible. The Government bears the burden of proving that the confession was not involuntary, that it was “freely self-determined.” In considering the question, courts should consider the totality of the circumstances, including characteristics of the accused and the details of the interrogation and whether there was any “coercive police activity,” such as misrepresentations and promises of leniency.[1]

The district court found that Agent Brown lied to Mr. Young and made promises of leniency. Nevertheless, the district court determined that the confession was voluntary, based mostly on the relative friendliness of the interrogation, Mr. Young’s experience in state criminal court, and the fact that he had been advised of his constitutional rights. Unable to avoid the confession, Mr. Young pled guilty and was sentenced to 188 months’ imprisonment. That’s 15 years and 8 months. So by confessing to more meth, he “physically bought down his time” and increased it from the 5 to 10 years Agent Brown had promised to more than 15 years.

On appeal, the Tenth Circuit was most troubled by Agent Brown’s misrepresentations about how the federal system works. “Although we do not require a law enforcement officer to inform a suspect of the penalties for all the charges he may face, if he misrepresents these penalties, then that deception affects our evaluation of the voluntariness of any resulting statements.” This is a version of a general rule in American law: you don’t have to say anything, but if you do say something, you can’t lie. Here, Agent Brown lied to Mr. Young when he said that confessing to higher quantities would result in a lower sentence. Agent Brown also lied when he said that he would tell the judge about Mr. Young’s cooperation, that the cooperation would “physically buy down the amount of time you see in federal prison,” and that “that’s the way it works.”

Because “that is not the way the federal system works.” Slip Op. at 9. In the federal system, higher amounts of possession tend to result in longer sentences. Cooperation can reduce sentencing ranges, but not enough to overcome the difference between 4 grams and 97 grams. Agent Brown’s lies undermined the voluntariness, and therefore the admissibility, of the confession. The confession should have been suppressed. The conviction must be vacated and the case remanded for further proceedings.

This case gives me hope. Police authority should come from their moral authority, their impeccable integrity, not from their guns. I am glad to see courts holding police to that standard.

Footnotes:

  1. I have omitted the case citations. If you are interested in seeing the cases the court cited, check out the slip opinion at 6–8.

Papering Over the Constitution

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The case of United States v. Lim, 897 F.3d 673 (5th Cir. 2018), is one of those cases that discourages me. It involves dishonesty and duplicity by three different Government actors on three different levels.

Level 1: The Miranda Two-Step

Miranda v. Arizona, 384 U.S. 436 (1966), is the source of the well-known “Miranda Warning”: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. And so on. The purpose of the Miranda Warning is to inform people that they do not have to answer police questions without an attorney present. But what if people won’t answer questions if there is an attorney present? How can you make sure you catch the bad guys?

One solution is the “Miranda two-step.” It goes like this:

  1. The officer asks questions and gets answers he likes.
  2. The officer gives the Miranda Warning to the individual, telling him that he doesn’t have to answer any questions.
  3. The officer asks the same questions again.
  4. If he gets the same answers, great; if the answers change, the officer says something like: “Wait a minute. Didn’t you just say . . . ?” With any luck, the person will change their answer back to the original answer.

It can be a pretty effective technique for covering up Miranda violations. It’s also pretty slimy.

In this case, ICE was executing a warrant for removal on a guy named Chhay Lim. Mr. Lim had been ordered removed 16 years earlier, but apparently had not been a priority for tracking down. Anyway, ICE knocked on his door at 6 am, asked him to step outside, and arrested him on his front porch. Lim, 897 F.3d at 685. Even though he was clearly under arrest, the ICE officers did not give him the Miranda Warning. In fact, the ICE officer in question “bragged that it was his standard policy not to Mirandize an alien until after it appeared that criminal charges might be filed.” Id. at 690. In other words: this officer doesn’t like to tell people they don’t have to answer incriminating questions until they have already answered some incriminating questions.

Back to the two-step. Since it was 6 am and Lim was still in his underwear, they “offered to allow Lim to return inside to dress,” but “they would have to accompany him inside if he did.” Lim, 897 F.3d at 685. Once inside, they asked him if there were any guns in the house. He told them there was one in the bedroom and one in the laundry room. They escorted him to the bedroom, and he pointed out where the gun was. Step one complete.

Step two: They “secured the gun” and “read [him] his Miranda rights.” Id. at 685. This is a key juncture in the facts of the case. Everything before the warning is “pre-Miranda”; everything after is “post-Miranda.”

Step three: Post-Miranda, they ask him where he got the gun. He said: “From a friend,” but then exercised his right to remain silent. Id. at 685.

At trial, the Government wanted to admit into evidence: (1) Lim’s statements admitting that there were two guns in the house and (2) the guns themselves. Lim objected: the question about whether there were any guns was pre-Miranda, and the guns were only discovered because of the Miranda violation. The trial court overruled his objections. On appeal, the Fifth Circuit agreed with Lim that the pre-Miranda statements and the laundry room gun should have been excluded, but agreed with the trial court that the bedroom gun could be admitted, because it would have been discovered in a proper protective sweep of the bedroom.

Even though the Fifth Circuit got this part of the case right, it’s discouraging that the ICE officers routinely dance the Miranda Two-Step.

Level 2: Crafty Wording in the Factual Basis

After the trial court denied his motion to suppress the statements and the guns, Mr. Lim pled guilty. As part of the guilty plea process, the Government drafted and Mr. Lim executed a “factual basis.” The idea of the factual basis is to make the judge comfortable that this defendant actually did what the Government claims he did.

Here, the Government drafted the factual basis to say the laundry room gun was “in plain view.” Lim, 897 F.3d at 688. If the gun was in plain view, then it was ok for the ICE officers to ask about it without telling Mr. Lim that he didn’t have to answer any questions. But here’s the thing: the officer who found the gun didn’t think it was in plain view. In fact, he testified that it took two tries to find the gun in the laundry room because it was “in a place he did not look initially because it was not somewhere a person could hide.” Lim, 897 F.3d at 688.

The Fifth Circuit did not approve of the Government’s shenanigans: “we will not allow the government to avoid its own evidence and rely on a craftily worded factual basis to justify a potentially unconstitutional search.” Lim, 897 F.3d at 689.

Still, it’s disappointing that a member of the bar who has taken an oath to uphold the Constitution and laws of the United States would stoop to shenanigans like this.

Level 3: The Appeal Waiver

Generally speaking, a defendant who pleads guilty waives the right to appeal any nonjurisdictional defect in the proceedings that occur before the plea is entered. A defendant may plead guilty while still reserving the right to appeal some aspect of the proceedings; that is referred to as a “conditional guilty plea.” Conditional guilty pleas, though, must “be in writing and designate the particular issues that are preserved for appeal; the government must consent to it; and the district court must approve it.” United States v. Olson, 849 F.3d 230, 231 (5th Cir. 2017). But “variances from these technical requirements” can be excused if “the record clearly indicates” that the defendant intended to enter a conditional plea, that he intended to appeal a particular pretrial ruling, and that neither the Government nor the district court objected to the conditional guilty plea. Lim, 897 F.3d at 680-81.

Here, the “written plea agreement does not indicate that the plea was conditional.” Lim, 897 at 680. In other words, Mr. Lim’s conditional guilty plea was not in writing, as required by Olson. So on appeal, the Government’s first argument was that Lim waived his right to appeal.

Only — that’s not the position the Government took in the trial court. According to the trial court “it is my understanding that you [Mr. Lim] and the government have agreed that you will not waive any right to appeal your conviction or your sentence.” The trial court then confirmed with Mr. Lim, Mr. Lim’s counsel, and the Government’s counsel that the court’s understanding was correct. In fact, the prosecutor agreed on the record:

Yes, Your Honor, that is correct. We have stripped out all of the appeal waiver language so he is reserving all of his appellate rights.

Lim, 897 F.3d at 680.

The Fifth Circuit was not amused. After outlining the facts and noting that, “The government weakly contends, however, that Lim did not do enough to preserve his right to appeal the denial of his motion to suppress,” the Fifth Circuit simply concluded: “Lim properly preserved his right to appeal the denial of his motion to suppress.” Lim, 897 F.3d at 681.

Still, it’s disappointing that the Government’s appellate attorney would even make the argument.

Thoughts for the Road

The police and the Government are supposed to be on the side of law and order. In America, that means being on the side of those who keep their promises. But here we have an ICE officer playing games with the constitutionally promised right to remain silent, we have a government trial lawyer trying to paper it over, and we have a government appellate lawyer trying to hide it. We have a right to expect better from our Government.

Answering and Not Answering Questions That Aren’t Asked

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United States v. Staggers is a case out of New Orleans involving three defendants who were jointly indicted and tried on charges relating to a conspiracy to distribute heroin. One defendant (Morrison) was acquitted of the conspiracy charges, but found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). His Guidelines range was 235 to 293 months in prison (or about 20 to 24 years), but the district court varied downward to the mandatory minimum of 15 years. On appeal, Morrison made two arguments for vacating his conviction:

  1. That the Government was required to but failed to prove that he knew he was a felon, in violation of Rehaif v. United States, 139 S.Ct. 2191 (2019);
  2. That the evidence supporting his conviction was obtained in violation of the Fourth Amendment because the police did not properly obtain consent to search his home.

The Fifth Circuit rejected his first argument, but accepted his second, vacating the conviction and remanding for a determination of whether the police had consent to enter his home without a warrant.

Rehaif and Knowledge of Felon Status

Section 922 defines a crime: “It shall be unlawful for any person . . . who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting commerce, any firearm or ammunition . . . .” 28 U.S.C. § 922(g)(1). This is often short-handed to being a “felon in possession.” Section 924 provides for punishment: “Whoever knowingly violates subsection . . . (g) . . . of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.” 28 U.S.C. § 924(a)(2). But if that person “has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another,” the ten-year minimum is enlarged to fifteen years. 28 U.S.C. § 924(e)(1).

In Rehaif, the Supreme Court broke down the crime defined by sections 922(g) and 924(a)(2) and (e)(1) as having four elements:

  1. a status element (here, having been convicted of a crime punishable by imprisonment for a term exceeding one year),
  2. a possession element,
  3. a jurisdictional element (the part about “in or affecting commerce”), and
  4. a firearm element.

The Court then held that to prove that a defendant “knowingly violate[d]” section 922(g), and therefore is subject to punishment under section 924, the Government must prove that the defendant had knowledge of the first, second, and fourth elements. Rehaif, 139 S.Ct. at 2195-96.

In Morrison’s case, however, the jury was only asked whether Morrison had knowledge of the second and fourth elements — not whether he knew he had the relevant status. (This may sound like a dumb thing to ask a jury, but the relevant status is being convicted of a crime punishable by more than a year in prison, not whether he was actually punished by more than a year in prison. Someone sentenced to less than a year or even right at a year in prison might not know he could have been sentenced longer.)

That should be the end of the case, right? The Government failed to prove its case beyond a reasonable doubt on all the required elements. Not quite. Morrison didn’t raise the issue, so the Govenment’s failure to carry its burden is reviewed for “plain error.”

To obtain reversal under the plain error standard, an appellant must show three elements and convince the court of appeals to exercise its discretion to correct the error. Puckett v. United States, 556 U.S. 129, 135 (2009). Here, the Fifth Circuit declined to exercise its discretion for three reasons. First, Morrison never argued that he “actually lacked knowledge of his status as a felon.” Second, the “record before us . . . shows that Morrison must have known that he was a convicted felon.” And third, the panel is “confident” that if the knowledge-of-felon-status element had been in play, “Morrison would have stipulated” to it. In other words, if the jury had been asked to determine whether Morrison knew he had the relevant status, the jury would have said yes. No need to send this case back to the jury to ask a question we all know the answer to.

It seems unfair on some level to put the burden of objecting on Morrison. Rehaif came out after Morrison’s trial but before the appeal was decided. If Rehaif changed the rules, which it seemed to do, how could Morrison know he was supposed to object? On the other hand, if Rehaif did change the rules, how was the Government supposed to know what it had to prove under the new, not-yet-announced rules? It seems to me that the plain error standard is a bit of a compromise between the two positions. It allows the court of appeals to look at the issue in this case, in these circumstances, and decide whether it affected things in a fundamentally unfair way. Sometimes, it operates as a safety valve to let courts address deeply unfair situations. Usually, it lets the the court of appeals shrug and move on.

Consent to be Searched

The Fourth Amendment is pretty clear:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .

U.S. Const. amend. IV.

A search with a valid warrant is reasonable, but searching “a person’s home [without a warrant] is presumptively unreasonable, and it is the government’s burden to bring the search within an exception to the warrant requirement.” United States v. Aguirre, 664 F.3d 606, 610 (5th Cir. 2011). Here, the Government claimed to have consent — that Morrison or somebody with authority consented to the search of his home. To show consent, the Government had to prove (1) that it received consent, (2) that was voluntarily given, (3) by someone with actual or apparent authority to consent, and (4) that the search did not exceed the scope of the consent given. United States v. Freeman, 482 F.3d 829, 831-32 (5th Cir. 2007). Morrison denied each of the first three elements.

First, define the search.

The basic circumstances are these. One day, at 6 o’clock in the morning, two police officers (Bordelon and Biondolillo) knocked on the door of Morrison’s house. Morrison’s girlfriend (Shlonda Jupiter) answered the door. What happened next is what really matters.

According to the Government’s witnesses, the three talked for a minute, and Ms. Jupiter “stepped back and opened the door some more . . . kind of moving out the way . . . allowing us in.” At the same time, apparently from the doorway, the police saw Morrison “in the hallway behind” Jupiter, “call[ed] out to him” to ask “whether he could come inside and talk,” and Morrison “answered in the affirmative.” (Slip Op. at 5.)

But according to Ms. Jupiter, she “stood between the door and the doorframe while talking to Bordelon and Biondolillo,” but they “pushed the door open and came bumping in” anyway. Once inside, they waited in the living room until Morrison came out of the bedroom. (Slip Op. at 5-6.)

The police smelled marijuana, read Morrison his rights, and asked him to sign a consent-to-search form. Bordelon either “explained its contents” or threatened to take his kids away and Ms. Jupiter to jail. (Slip Op. at 5-6.) Either way, Morrison signed the form, and the police asked whether there were any guns in the house. Morrison told them about one in his bedroom. They found it, partially loaded. (Slip Op. at 4.) That firearm was the basis of his conviction under section 922(g)(1).

The search here occurred when the police entered the house and started asking questions and looking for things.

Then, look for the consent.

Unlike many other areas of life, consent to be searched by the police “does not need to be explicit” but “may . . . be inferred from actions that reasonably communicate consent,” including “silence or failure to object [that] follows a request for consent.” (Slip Op. at 15.) The Government argued that it received implied consent to enter the house when Ms. Jupiter “kind of mov[ed] out the way.” (Slip Op. at 5, 15.) The Fifth Circuit rejected this argument for two reasons.

First, there was a factual dispute about whether or not Ms. Jupiter in fact “kind of mov[ed] out the way.” The police said she did; she said she didn’t. The district court therefore had to make a credibility determination (i.e., decide whether it believed the police or Ms. Jupiter), which it did not do. Instead, it (wrongly) concluded that both accounts essentially showed consent. In other words, the Government had to prove (i.e., convince the district court) that it had consent to enter the home. Because it did not convince the district court, it did not prove consent.

Second, even if she did “kind of mov[e] out the way,” silence or failure to object can constitute implied consent “only if that silence follows a request for consent.” (Slip Op. at 15.) In other words, the case might be different if the police had asked Ms. Jupiter if they could come in and she had “kind of mov[ed] out the way.” But they didn’t, so her silence is not consent.

Even if consent is actually given, it must also be given voluntarily. This issue turns on the totality of the circumstances, described by a six-factor test. The Fifth Circuit noted that the conversation with Ms. Jupiter at the front door was “peaceful,” that the police “did not shout at or threaten [Ms.] Jupiter,” that their weapons were holstered, and that she had testified that “she ‘was about to shut the door’ on the officers when they barged in.” (Slip Op. at 18-19.) Thus, the Fifth Circuit concluded, assuming consent was in fact given, it was given voluntarily.

The last issue raised by Morrison was that Ms. Jupiter did not have authority to consent to the police entering the home. The Fifth Circuit made short shrift of this argument: “Because [Ms.] Jupiter lived with Morrison, the district court did not clearly err by concluding that she had actual authority” to consent. (Slip Op. at 20.)

No consent + no warrant = no evidence

In sum, the Fifth Circuit found that the Government had not carried its burden of proof on the first element, actual consent. Without actual consent, and without a warrant, the search was unreasonable and violated the Fourth Amendment. But because there was a factual dispute about whether consent was actually given, the Fifth Circuit remanded to the district court to make that determination.

Credits

Senior Circuit Judge Carolyn Dineen King authored the opinion, joined by Circuit Judges Edith Jones and Gregg Costa. It’s interesting to note that while the case came out of New Orleans, all three judges came from Houston.

Public defender Samantha Jean Kuhn signed the brief and made oral argument on behalf of Morrison.