Tag Archives: criminal

When Keeping Kids Is a Crime

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.

Sentencing 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.

Papering Over the Constitution

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:

The officer asks questions and gets answers he likes.
The officer gives the Miranda Warning to the individual, telling him that he doesn’t have to answer any questions.
The officer asks the same questions again.
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.

Jeremy M. Masten

Attorney and Counselor at Law