I am always harping about how lawyers defending against federal crimes need to be creative, and need to challenge whether their clients even committed a crime. About 15 years ago, I raised a series of challenges against what is called the “straw purchase” theory of liability when a person buys a gun but later transfers the weapon to another person. The law merely says that gun dealer needs to keep records, and also says that the buyer cannot make a false statement about a “material” matter. ATF kept changing position, but finally said that it is a false statement about a material matter if the buyer intended to give the gun to another person. One of the cases where I raised this challenge resulted in an opinion in the United States Court of Appeals for the Eleventh Circuit, and can be seen here.
The United States Supreme Court recently announced that it will take on the case of U.S. v. Castleman. In that case, the federal court of appeals decided that Mr. Castleman’s prior conviction in Tennessee for “misdemeanor domestic assault” did not fall within the federal crime that prohibits gun possession by anyone with a prior conviction for a “misdemeanor crime of domestic violence”. This case encompasses not only the national debate concerning guns and violence, it also shows how the federal government is trying to further and further expand the reach of federal crimes. Likewise, it demonstrates how good lawyers often prevail in federal criminal cases.
Like many Americans, Mr. Castleman apparently got into a domestic squabble. He was charged with a crime because he committed an assault on the mother of his child, and like so many incidents, he got a sentence of probation. Several years later, federal authorities investigated him for gun crimes, resulting in charges for violating Title 18, United States Code, section 922(g)(9), which makes it a crime for any person convicted of a “misdemeanor crime of domestic violence” to possess a firearm. The phrase “misdemeanor crime of domestic violence” is defined as a misdemeanor offense, committed by a person with a specified domestic relationship to the victim, that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”
A recent case out of Alabama addressed the intersection between gun possession and having the right to vote restored after an earlier felony conviction. As just about everybody knows, a person convicted of a felony usually loses some of their “civil rights”, even if they never go to jail. The federal government makes it a separate crime if a previously-convicted felon possesses a firearm. Many states, however, have laws that quite sensibly restore a person’s “civil rights”. Another portion of the federal gun laws says that when a convicted felon’s civil rights have been “restored”, then the conviction does not count when deciding if the person violated the law prohibiting felons from having guns. Our beloved Eleventh Circuit Court of Appeals here in Atlanta decided that having a person’s right to vote restored under Alabama law was not the same as having ones civil rights (plural) restored, so that the person could be convicted for possession of a gun after a felony conviction. The case is United States v. Thompson.
in March, 1994 Mr. Thompson was convicted of assault, and under Alabama law he automatically lost the right to possess a firearm, to hold office, to serve on juries, and to vote. Eleven years later, Thompson applied to the State of Alabama for restoration of his civil rights. He got a letter from the State of Alabama Board of Pardons and Paroles in early, 2006, which said that he could once again register to vote and actually vote in elections. However, the letter also said that “THIS CERTIFICATE IS NOT A PARDON AND DOES NOT RESTORE, REMOVE OR ADDRESS ANY OTHER RIGHTS, PRIVILEGES OR REQUIREMENTS.” Another letter said that, ” If you desire to have any additional rights restored, please inquire at your local probation and parole office.” Three and a half years later, the police arrested Mr. Thompson while he had a gun. A federal grand jury charged Thompson in a one-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Thompson moved to dismiss the charges, pointing out that because his right to vote was restored, he fell within the exception described at 18 U.S.C. § 921(a)(20), which provides that “[a]ny conviction . . . for which a person . . . has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such . . . . restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” § 921(a)(20) (emphasis added).
This Monday the federal Supreme Court issued its opinion in Abbott v. United States, together with Gould v. United States. The Court held 8-0 (Justice Kagan took no part in the decision) that a defendant is subject to the highest mandatory minimum sentence specified in § 924(c) unless another provision of law directed to conduct proscribed by that subsection imposes an even greater minimum. We are disappointed that the Court disregarded the plain language of the statute.
As we discussed in this post when the Court granted certiorari, § 924(c) contains a prefatory clause, called the “except” clause, that applies the subsection “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” We read that clause as plainly prohibiting the application of § 924(c) where “any other” greater minimum sentence applies. The government disagreed, arguing that the clause is triggered only when another provision commands a longer term for conduct that violates §924(c).
Gould argued the plain language of the clause: that it applied whenever any count of conviction at sentencing required a greater minimum sentence. Abbott proposed two potential happy mediums: that the minimum sentence “otherwise provided” must be one imposed for the §924(c) predicate crime or, in the alternative, for a firearm offense involving the same firearm that triggered §924(c). The Court rejected all three arguments.
Earlier this week, the Supreme Court granted certiorari in Davis v. United States. The Court will resolve a federal circuit court split: whether the good faith exception to the exclusionary rule applies to a search that is later ruled unconstitutional. This March, the Eleventh Circuit held in Davis that the exclusionary rule does not apply when the police conduct a search reasonably relying on well-settled precedent, even if that precedent is later overturned. We hope the Court reverses this decision.
In Davis, the defendant was a passenger in a routine traffic stop in Alabama. He gave the police officers a false name. When asked to exit the vehicle, Davis removed his jacket and left it in the car, then was taken toward a group of bystanders. The bystanders provided his real name, leading to Davis’s arrest for giving a false name. In the search incident to his arrest, the officers found a gun in the jacket, which was still in the car. Davis was convicted of possession of a firearm and sentenced to more than 18 years.
As we explained in this post, the Supreme Court decided Arizona v. Gant in April 2009. The Court held that police are authorized “to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” unless some evidence related to the crime of arrest may be in the vehicle. This decision rendered the search in Davis unconstitutional.
Last week, the Eleventh Circuit Court of Appeals issued its opinion in U.S. v. Ranier. In contrast to many recent cases in which the Court held that certain crimes were not “violent felonies” for the purposes of the Armed Career Criminal Act (ACCA,) the Court held in Ranier that the defendant’s prior conviction in Alabama for third degree felony burglary qualified as a predicate offense.
In the wake of Begay v. U.S., in which the Supreme Court held that “violent felonies” for the purposes of the ACCA must be similar in kind and degree to the crimes expressly listed in the statute, the courts have been hammering out which crimes do and do not qualify. We have discussed several of these cases in the following posts:
Harris (second degree felony eluding police with wanton disregard for safety is a violent felony, although third degree felony willful fleeing is not – 11th Cir.)
Last month, the Eleventh Circuit Court of Appeals held that 18 U.S.C. § 924(c), which makes it a federal crime to use or possess a firearm in connection with a crime of violence, can apply to crimes of violence committed outside the United States. In U.S. v. Belfast, the first case prosecuting an individual under 18 U.S.C. § 2340A (the Torture Act,) the Court upheld a § 924(c) conviction where the American citizen defendant tortured people in Liberia.
The defendant, a man of many names whom the court referred to as Emmanuel, is the American born-and-raised son of Charles Taylor, a former president of Liberia who is currently on trial for crimes against humanity in the Special Court for Sierra Leone. President Taylor put Emmanuel in charge of the “Anti-Terrorism Unit,” which was known in Liberia as the “Demon Forces.” In that role, Emmanuel tortured many individuals between 1999 and 2002. Twelve pages of the Court’s 87-page opinion recount horrifying details of that torture.
The Court justified the application of § 924(c) to crimes of violence committed extraterritorially by arguing that the plain language of § 924(c) provides for its application to any crimes that “may be prosecuted in a court of the United States.” Because the Torture Act, which applies extraterritorially, may be prosecuted in federal courts, the Court reasoned, “a § 924(c) charge can arise out of extraterritorial conduct that is found to be in violation of the Torture Act.”
This Monday, the Eleventh Circuit held in Gilbert v. United States that, for federal sentencing purposes, the act of being a U.S.S.G. § 4B1.1 career offender is essentially a separate offense. Based upon the Supreme Court’s retroactive decision in Begay and the Eleventh Circuit’s implementation of that decision in Archer, Gilbert is actually innocent of committing two violent felonies, the basis for that offense. Because circuit law squarely foreclosed his claim when he raised it at sentencing, on appeal, and in his first 28 U.S.C. § 2255 motion, Gilbert was entitled to relief under 28 U.S.C. § 2241. He may now be eligible for immediate release.
The Original Sentence and Appeals
In 1997, Gilbert was convicted of a crack cocaine offense and sentenced as a career offender under § 4B1.1 based upon previous convictions for possessing crack with intent to sell and carrying a concealed firearm. Under the then-mandatory Sentencing Guidelines, the enhancement increased his Guidelines range from 151-188 months to 292-365 months. Gilbert argued that carrying a concealed firearm was not a crime of violence, but the district court judge disagreed and, stating that he thought the sentence was too high, reluctantly sentenced Gilbert to 292 months. On appeal, the Eleventh Circuit held that carrying a concealed firearm was a crime of violence for purposes of the career offender guideline. Gilbert’s pro se § 2255 motion was denied in 1999, all post-conviction options now exhausted.
In another federal criminal decision issued last Friday, the Eleventh Circuit Court of Appeals held that the identity of a firearms purchaser is always material to the lawfulness of the purchase of a firearm under 18 U.S.C. § 922(a)(6). This decision directly conflicts with the Fifth Circuit’s 1997 holding in U.S. v. Polk that § 922(a)(6) was not violated where both the defendant and his “straw purchaser” were eligible to purchase firearms legally.
In Frazier, the defendants were involved in smuggling firearms from the United States into Canada. The evidence showed that Frazier purchased guns, then paid a woman to order the same guns from the same shop shortly thereafter. Later, another woman ordered additional guns for Frazier.
To convict under § 922(a)(6), the government must prove that the defendant made a false statement regarding “a fact material to the lawfulness of the sale or disposition of [a] firearm.” This section is violated when “an unlawful purchaser uses a straw man purchaser to obtain a firearm.” In this case, however, Frazier was a lawful purchaser using a straw man. In Polk, the Fifth Circuit reasoned that, in such a case, the false statements made regarding the identity of the purchaser were not “material to the lawfulness of the sale of firearms” so there could be no liability under § 922(a)(6).