4th Circuit: U.S. Sentencing Guidelines Implicate Ex Post Facto Clause

Today the Fourth Circuit released an interesting opinion touching on the relationship between the U.S. Sentencing Guidelines and the Ex Post Facto Clause of the Constitution.

In United States v. Lewis, the defendant was convicted in the Eastern District of Virginia of unlawful possession of a firearm by a convicted felon.  After Lewis's conviction, but before his sentencing hearing, the Sentencing Guidelines were changed, resulting in sentencing range for Lewis that was double what the range would have been had the Guidelines not been changed.  The district court found that applying the amended Guidelines range to Lewis would violate the Ex Post Facto Clause, and Lewis was then sentenced under the 2005 (pre-amended) Guidelines.  The United States appealed the sentencing ruling, and Lewis appealed the district court's denial of his motion to suppress evidence of the firearm for which he was convicted of unlawful possession.  For purposes of this post, only the Sentencing Guidelines issue is relevant.

The Fourth Circuit, by a 2-1 decision, agreed with the district court, concluding that applying the more harsh sentencing range suggested by the amended 2008 Guidelines would violate the Ex Post Facto Clause, and that Lewis was properly sentenced under the 2005 Guidelines.

The majority wrote that the court "need only determine whether, practically speaking, application of the 2008 edition of the Guidelines would have created a significant risk of increased punishment for Lewis."  The Fourth Circuit, using as 'as applied' analysis, found that an almost two-fold difference in the likely sentences suggested by the opposing versions of the Guidelines would certainly create a "significant risk of increased punishment."  The majority additionally found, in refuting the dissent's analysis, that the sentencing judge's use of the Guidelines as merely a consideration before imposing its sentence does not comport with Fourth Circuit precedent.  Rather, the majority wrote, "the [sentencing] court must correctly calculate the advisory Guidelines range, and it must provide an adequate explanation of how it arrived at that calculation." (emphasis added).

The dissent, by Judge Goodwin (sitting by designation), relied primarily on the plain text of the Ex Post Facto Clause and the effect of United States v. Booker.  [As quick background, in Booker, the Supreme Court found that the Sentencing Guidelines do not have strict legal force and are merely advisory, rather than mandatory.]  Because the Ex Post Facto Clause applies only to retroactive "laws," Judge Goodwin opined, it cannot logically apply to a merely advisory Guidelines range.  "In so doing [finding the Ex Post Facto Clause applies], the majority ignores the reality that the Guidelines lack legal force."

Although I practice a significant amount of criminal defense law, I think I must agree with Judge Goodwin's dissent here.  If we are going to accept the Supreme Court's decision (not like we have a choice) that Booker made the Guidelines fully advisory and with no true legal force, then it must follow that we cannot treat the Guidelines as mandatory in any respect.  Everyone knew that Booker was a very significant decision when it was rendered, but I think now we're starting to see some of its collateral effects.  There is apparently a split among the federal appellate courts on this Ex Post Facto Clause issue (the Lewis decision explored opposing views from two circuits -- the Seventh and the D.C. Circuits), and this may be ripe for Supreme Court review sometime soon.

4th Circuit: No Expectation of Privacy in Your Internet Subscriber Information

In a child pornography case, the Fourth Circuit recently considered a novel issue (in the Fourth Circuit, at least) in a challenge to whether the Fourth Amendment protects an expectation of privacy in Internet subscriber information.

In United States v. Bynum, the defendant was convicted by a jury of interstate transport and possession of child pornography, federal offenses.  Judge Reidinger, of the Western District of North Carolina, sentenced Bynum to 16 years in prison – a mid-Guidelines sentence for these particular offenses and Bynum’s criminal history (category I).  Bynum appealed to the Fourth Circuit, arguing the district court erred on several issues, however, this blog comment concerns only one of the issues reviewed by the appellate court.

Bynum claimed on appeal that the FBI violated his Fourth Amendment rights by using administrative subpoenas to acquire his Internet subscriber information – i.e., his name, telephone number, email address, and physical address.  To get this information, the FBI went through several links in a chain.  First, the FBI identified the IP address belonging to a frequent user (“markie_zkidluv6”) of a Yahoo! chat room who had uploaded various pictures of child pornography.  After identifying the IP address for “markie_zkidluv6,” the FBI tracked down the Internet provider associated with that IP address and subpoenaed the user’s Internet subscriber information.  Thus, the FBI determined that “markie_zkidluv6” was actually Bynum.

On appeal, Bynum argued that the district court erred, inter alia, by denying his motion to suppress the evidence against him as being the fruit of unlawful administrative subpoenas.  The Fourth Circuit disagreed with Bynum, issuing its opinion on May 5 and finding that Bynum had no subjective reasonable expectation of privacy in the subscriber information he supplied to his Internet provider.  Judge Motz wrote that “Bynum voluntarily conveyed all this information to his Internet and phone companies.  In so doing, Bynum assumed the risk that those companies would reveal that information to police.” (quoting Smith v. Maryland).  Further, Bynum voluntarily included his age, sex, location, and a picture of himself on his Yahoo! chat profile.  Because the FBI’s subpoenas did not invade any legitimate expectation of privacy, the Fourth Circuit found that the FBI did not violate Bynum’s rights under the Fourth Amendment, and the district court correctly denied his motion to suppress.

All in all, this decision is probably the right one, even from a South Carolina criminal defense attorney’s perspective.  We all subject ourselves to a slight loss of privacy when we put ourselves “on the grid” and voluntarily provide personal information to Internet and other service providers in order to become customers.  For someone to give his real name and contact information, access and upload child pornography, and then claim that he had an expectation that his information would be kept private from law enforcement… that really doesn’t seem reasonable.

Warrantless Searches Coming to S.C.: House Overrides Governor's Veto

I've opined before about the then-pending bill in the General Assembly which would give police virtually unfettered ability to search people who have been granted probation or parole.  With individual civil liberties in mind, Governor Sanford vetoed the bill when it landed on his desk.  But on Wednesday, April 28, the governor's veto was overridden by the General Assembly after 2 previous failed attempts.  The House voted 74-37, and the Senate voted 36-7, to force the bill into law, effective immediately.

The new law applies to conditionally released juveniles and youthful offenders, furloughed inmates, parolees, and people participating in community supervision programs.  It subjects them to search or seizure, without a search warrant, without cause, of their person, any vehicle they own or are driving, and any of their possessions.  Let that sink in.

Even though the law doesn't affect those who have been convicted of a Class C misdemeanor or unclassified misdemeanor carrying a possible sentence of 30 days or less prison time, it's still troubling.

House Speaker Bobby Harrell released a pandering and largely self-laudatory press release to announce the law's passage.  Speaker Harrell crowed, "These searches are completely warranted because convicted offenders are serving out their remaining sentences in the public in lieu of jail."  I'm sure the irony in calling these warrantless searches "warranted" isn't lost on the Speaker.  But to follow his logic, because the parolees are in public, they are not afforded the typical Fourth Amendment protections?  Further, in order to "reduce recidivism," we're going to go ahead and presume each and every parolee is going to break the law.  So why grant them parole in the first place?

So what does this mean for South Carolina criminal defense attorneys? [. . .]

Physical Observations Not Protected by "Probation Agent/Client Relationship"

We often hear about violations of attorney/client privilege, doctor/patient privilege, and priest/penitent privilege.  It's rare, then, that we see a court opinion centering on a statutory privilege between a probation agent and the criminal on probation.  In Hutto v. State, filed last Monday, the South Carolina Supreme Court considered just that.

In the process of burglarizing a 91-year-old woman's home and raping her, Hutto received several cuts on his arms and hands from broken glass.  A month later during a routine visit, Hutto's probation agent noticed the cuts.  The probation agent then relayed the information about the cuts to an investigator, which eventually resulted in Hutto being identified in a lineup.  At trial, the probation agent testified about the cuts on Hutto's arms and hands, and Hutto was convicted of burglary and criminal sexual conduct.

Hutto later applied for post-conviction relief, arguing that his trial counsel was ineffective.  Hutto cited S.C. Code Section 24-21-290, which states: "All information and data obtained in the discharge of his official duty by a probation agent is privileged information, is not receivable as evidence in a court, and may not be disclosed directly or indirectly to anyone other than the judge or others entitled under this chapter to receive reports unless ordered by the court or the director."  Hutto's PCR argument was that, based on the statute, his trial attorney should have moved to suppress the agent's statement, as it was gained from privileged information disclosed by Hutto's probation agent.  The PCR application was denied, and Hutto appealed.  The Court of Appeals affirmed, and Hutto appealed to the Supreme Court.

The Supreme Court again affirmed the PCR court, holding that the probation agent's testimony should not have been suppressed, and thus there was no ineffective assistance of counsel.  Writing for the Court, Chief Justice Toal in a one-paragraph explanation reasoned that "the statute's purpose is to foster open lines of communication between the probation agent and client," and that the statute was not intended to encompass physical observations such as the probation agent noticing Hutto's cuts.  The Chief Justice continued that "anyone could have [noticed the cuts] when encountering [Hutto]."

To me, however, this fails to explain the Court's decision to avoid the plain, straightforward, and unambiguous language of the statute.  The statute bars the disclosure of "all information and data" unless it is specifically authorized or ordered otherwise.  The Court's reasoning is that interpreting the statute as literally written would prevent a probation agent from ever disclosing evidence of crimes.  The statute itself clearly rebuts this reasoning, since disclosure is allowed as long as it is ordered or authorized.  Certainly if there is clear evidence that a criminal on probation has committed another crime, the probation agent would petition a judge or court to allow disclosure of the fact.

 Justice Pleicones dissented, pointing out the plain language of the statute as well as the statute's inclusion of a procedure to disclose the information, which was not followed in Hutto's case.

The ruling may strike a blow to criminal defense attorneys in South Carolina who zealously represent their clients by challenging the procedures the State uses to introduce evidence against defendants at trial.  Police and prosecution agents should not be able to avoid statutory requirements when compliance will merely make things inconvenient for them.

Court of Appeals Clarifies Meaning of "Presenting" a Firearm

On April 5, the S.C. Court of Appeals released an opinion interpreting the meaning of "presenting" a firearm.  In In re Spencer R., the juvenile defendant was convicted of presenting a loaded assault rifle at a woman, the woman's daughter, and the daughter's friend -- a felony criminal offense carrying a maximum penalty of five years in prison.  The facts suggest that the defendant "stared down" the alleged victims while holding a loaded assault rifle in the 10 o'clock and 4 o'clock position (essentially, holding the gun at rest).  Although the defendant never actually pointed the weapon at any of the victims, the trial court found that the term "presenting" encompassed holding a firearm with the muzzle pointing up.

The Court of Appeals, however, disagreed with the trial court's definition.  In a per curiam opinion, the court adopted a definition of to present as "to offer to view in a threatening manner, or to show in a threatening manner."  Based on this new definition, the court still found there was sufficient evidence to convict the defendant of the presenting a firearm, based largely on circumstantial evidence.  Although the defendant was holding the assault rifle at ease, he "stared down" one of the victims as she passed by the defendant in a car.  Additionally, the defendant made statements earlier in the day about wanting to shoot and kill the victim.  The court's opinion clarifies a somewhat ambiguous statutory term, which may make it easier for criminal defense attorneys in South Carolina to better analyze pointing and presenting cases.

Can Silence Constitute a Valid Waiver of Your Right to Remain Silent?

Today the Supreme Court of the United States will hear argument in Berghuis v. Thompkins, reviewing an important Sixth Circuit decision relating to Miranda.  The main issue in Thompkins is

 "Whether the Sixth Circuit expanded the Miranda rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged that he understood them, and the defendant did not invoke them but did not waive them."

The defendant, Thompkins, was arrested on suspicion of murder.  He was verbally advised of his Miranda rights, but he refused to sign a written acknowledgment of his rights.  After three hours of interrogation, during which Thompkins continued to exercise his constitutional right to remain silent, one of the interrogating officers decided to take a "spiritual tack" and asked Thompkins if he had sought God's forgiveness for the murder.  At that point, Thompkins broke down in tears and responded, "Yes."

Of course, Thompkins's lawyer argued to suppress his statement, but the motion was denied by the trial court.  His appeal was denied by the Michigan Court of Appeals, and the Michigan Supreme Court declined to review his case.  Thompkins then filed for habeas relief in federal district court, was denied, and appealed to the Sixth Circuit.  The Sixth Circuit, however, found in Thompkins's favor, reversing the Eastern District of Michigan and setting up today's showdown in Washington.

It appears the essential question boils down to what should be the default presumption regarding a Miranda waiver where the suspect understands his rights, but neither explicitly invokes nor waives them.  Should the courts consider it a valid waiver if the suspect then begins to talk?  If so, how long is too long?  Thompkins didn't start talking until about 3 hours into the interrogation, which was admittedly one-sided.  Would it be different if he started talking within 30 minutes?  What about 5 hours?

Since the question of whether a suspect has validly waived his Fifth Amendment right to remain silent under Miranda is always an extremely important pretrial matter, South Carolina criminal defense attorneys should await the Court's decision with some interest.  If the Court affirms the Sixth Circuit, then defense attorneys may have a new avenue through which to attack confessions at suppression hearings.

A synopsis of the case and supporting briefs, including amici curiae, are available from SCOTUSWiki.

No Strategy = A Valid Strategy?

Should counsel's response that he had no strategy whatsoever in failing to object to impermissible hearsay testimony constitute a valid trial strategy and negate a PCR applicant's claim of ineffective assistance of counsel?

Yes, according to Chief Justice Toal's dissent in Smith v. State.

In Smith, the Court voted 4-1 to reverse a PCR judge and grant the defendant a new trial based on ineffective assistance of counsel.  The defendant's trial lawyer failed to object to impermissible corroborative hearsay testimony at the defendant's trial for 2nd degree criminal sexual conduct.  At the PCR hearing, trial counsel was asked whether he had any strategy when he failed to object to what was clearly improper testimony from a forensic interviewer.  Counsel's response was, "none."  The Supreme Court found that this was not a valid trial strategy and that the defendant was prejudiced thereby, and reversed the PCR court.

The Chief Justice, however, disagreed.  Relying on Watson v. State, she wrote that in her opinion, "the PCR court correctly found that trial counsel articulated a valid trial strategy consistent with his failure to object to the inadmissible hearsay testimony at issue."  Under Watson, the deficiency prong of the Strickland test is not satisfied where trial counsel "articulates a valid reason for failing to object to . . . hearsay testimony."  But the Chief Justice failed to offer any support for this view.

In my opinion, the Chief Justice's reliance on Watson here is severely misplaced.  In Watson, the PCR issue, as in Smith, was based on counsel's failure to object to impermissible hearsay testimony under Rule 801(d)(1)(D), SCRE, which limits corroborative testimony in a criminal sexual conduct case when the alleged victim testifies.  At the PCR hearing, Watson's trial counsel stated that she felt objecting to the corroborative testimony would open the door for the Solicitor to play a tape of the victim (a 9-year-old child) describing the abuse and identifying Watson as her attacker.*  The Court found this to be a valid trial strategy and reversed the PCR court's decision to grant Watson a new trial.

It seems clear that Smith is very different from Watson.  Smith's trial counsel failed to offer any strategy whatsoever in his decision not to object to the hearsay testimony.  So how does the Chief Justice support her dissent?  It appears she doesn't, unless you interpret her dissent as based on the Court's narrow scope of review in PCR cases (the Court should affirm if the PCR judge's ruling is supported by any evidence of probative value).  But even then, there is no mention of the evidence that supposedly supports the PCR judge's ruling.  The dissent doesn't refute or even offer an alternative interpretation of trial counsel's 'no strategy' testimony.

The Chief Justice's dissent is troubling, as she seems content to interpret her own opinion in Watson as equating "no strategy" with "a valid strategy."  The dissent further posits that even if trial counsel's assistance was ineffective, it still didn't prejudice the defendant, the reason for which is a separate issue that warrants a separate discussion.

*In fairness, it should be noted (as Justice Pleicones points out in his dissent) that counsel's strategy in Watson was based on a seemingly obviously erroneous interpretation of the South Carolina Rules of Evidence.  Nonetheless, it was a strategy, even if misguided.  Compare that to counsel's testimony in Smith, where he stated explicitly that he had absolutely no strategy in failing to object to the impermissible hearsay testimony.