Search & Seizure Update from Oregon Federal Public Defender

The Oregon Federal Public Defender issued its latest version of Developments of Search and Seizure Law.  Read more about it on the Ninth Circuit Blog.

Conditional Release from Insanity Civil Commitment Revoked Because Refused to Follow Group Home Rules

United States v. Washington, No. 13-50870 (5th Cir. Aug. 22, 2014) (Stewart, Wiener, Costa)

First, the background to this case concerning civil commitment pursuant to 18 U.S.C. § 4243.  Washington was found not guilty by reason of insanity at a bench trial in 2009 for the charged offense of robbery by force and violence (a threat to stab the teller with a non-existent knife in exchange for $2,711).  The district court committed him to a mental health facility for evaluation and treatment.  In 2012, the Bureau of Prisons certified that Washington had recovered from his mental disease or defect.  The district court held a hearing in April 2012 and conditionally released Washington “based on its finding, by clear and convincing evidence, that his release under a regimen of care and treatment would not pose a substantial risk of bodily injury to another person or serious damage to the property of another.”  One of the conditions of Washington’s release was that he reside at a group home, and this condition was an express component of the FMC Butner release plan.

In July 2013, the probation office filed a petition for a warrant for Washington’s arrest alleging that he violated the condition of residing at the group home.  Testimony at the revocation hearing established that Washington refused to sign a commitment to follow the group home’s rules, knowing that his refusal would result in an eviction notice.  One letter written by the group home’s program director that was admitted into evidence indicated that she “supported Washington’s exploration of less-restrictive housing options.”  Another letter indicated that Washington was becoming more aggressive to others, telling them not to report his breaking of house rules.

The probation officer testified that Washington was in compliance with his medicines, completed his GED, was enrolled in community college, was not mentally unstable, and had not been involved in any physical assaults or criminal charges while on conditional release.  The probation officer also testified, however, that she believed Washington tried to physically intimidate her at one point and that—while she could recommend a transitional home if an appropriate facility could be found—Washington could not be safely maintained in the community because he was not willing to follow the rules at any facility.

Based on this evidence, would you find that Washington “failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, and that his continued release will create a substantial risk of bodily injury to another person or serious damage to the property of another”?  See § 4243(g).

Well, the district court did, and the panel affirms “[b]ecause the doctors who crafted Washington’s release plan included residence in a group home as an express element, and because the district court’s substantial-risk finding was not clearly erroneous[.]”  The panel tries to curb what could “appear to lower the bar for re-commitment proceedings insofar as . . . earlier precedents generally have addressed individuals who refused to follow their doctors’ advice” by emphasizing that “every substantial-risk assessment must turn on the unique factual circumstances of each case rather than on an attempt to compare one individual to another.” 

Still, a record that simply reflects that Washington “was not getting along well with the people around him” without any professional medical opinion as to any risk posed by Washington’s release seems a little skim for a judicial “infer[ence] that his increasingly verbal aggressiveness was a sign of dangerousness, or even potential illness, rather than a sign of recovery and attendant resurgence of his desire for autonomy.”  Given district judges’ “awesome responsibility to protect the public and to strike the difficult balance with individual liberty,” however, the panel does not disturb the district judge’s order.

No Realistic Possibility that Texas Possession With Intent to Distribute Was Not an Aggravated Felony or § 2L1.2 DTO

United States v. Teran-Salas, No. 13-40884 (5th Cir. Sept. 15, 2014) (Davis, Smith, Clement)

The panel acknowledges that a defendant can be convicted under the Texas possession with intent to distribute (“PWID”) statute, Texas Health and Safety Code section 481.112(a), for conduct that would not qualify as a federal drug trafficking offense (“DTO”).  In other words, Texas PWID is broader than a federal DTO.  Texas PWID includes possession with intent to dispense, which includes administering a controlled substance in the presence of a practitioner.  This is different than the administering encompassed by the federal DTO definition of dispensing, which applies only to the administration of a controlled substance pursuant to a practitioner’s lawful order.  See 21 U.S.C. § 802(10).

Even though Texas PWID does not have as an element the administration of a controlled substance pursuant to a practitioner’s lawful order, the panel applies the modified categorical approach to narrow Teran-Salas’ offense to possession of more than four grams of cocaine with intent to deliver.  (The panel does not explain how this is consistent with Descamps.) 

Applying a “common-sense approach,” the panel holds that, “based on the elements of his conviction, Teran-Salas does not establish a realistic probability that Texas would prosecute his crime under an ‘administering’ theory in a way that does not also constitute either ‘dispensing’ or ‘distributing’ under the federal sentencing guidelines.”  Instead, the panel believes Teran-Salas only establishes “a theoretical possibility that the Texas statute criminalizes conduct that would not qualify as a [DTO, since] there is not a realistic probability that Teran-Salas was prosecuted for engaging in medical care or research that involved administering cocaine in amounts greater than four grams.”

The panel affirms the 16-level enhancement and also favorably cites unpublished decisions that made similar decisions with regard to an Illinois drug trafficking statute (United States v. Ruiz Sanchez, No. 12-40199, 2014 WL 2925157, at *1 (5th Cir. June 30, 2014) (per curiam) (unpublished)) and a Washington statute (United States v. Villeda-Mejia, 559 F. App’x 387, 389 (5th Cir. 2014) (per curiam).

Use-of-Computer Enhancement in Sex Trafficking Case Correct; Disregard Application Note 4 as Inconsistent with § 2G1.3(b)(3)(B)

United States v. Pringler, No. 12-10029 (5th Cir. Aug. 26, 2014) (Higginbotham, Jones, Prado)

Pringler was convicted at trial of aiding and abetting sex trafficking of a minor in violation of 18 U.S.C. § 1591(a).  The panel affirmed the conviction, finding the evidence was sufficient (he took the money the minor earned from prostitution, paid for hotel rooms where she met johns, bought the laptop she used to advertise, and drove her to appointments) and that his counsel was not ineffective by failing to move for acquittal at the close of the Government’s case.

With regard to sentencing, Pringler challenges the application of a 2-level increase to his base offense level pursuant to U.S.S.G. § 2G1.3(b)(3), which provides:

If the offense involved the use of a computer or an interactive computer service to (A) persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct; or (B) entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with the minor, increase by 2 levels.

The Commentary to the Sentencing Guideline says that § 2G1.3(b)(3) “is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor” or the minor’s guardian.  § 2G1.3 cmt. n.4. 

Pringler never used a computer to communicate with the minor or her guardian.  So, the panel acknowledges that, if it applies Note 4 of the Guideline Commentary, Pringler would not get the enhancement.  The panel rejects the Government’s argument that Note 4 would be satisfied here because when a pimp communicates with a third party via computer to solicit/advertise sex with a minor, that third party might think the pimp has custody or control over the minor.  Under that scenario, the panel believes the third party could merit the enhancement under Note 4, but not the pimp.

Thus, the panel must decide whether it can avoid giving effect to Note 4 because “it is inconsistent with, or a plainly erroneous reading” of the Guideline.  This is a question of first impression in the Fifth Circuit, and the subject of a circuit split.  The Fourth and Eleventh Circuits have found Note 4 inapplicable and applied the enhancement based on the plain language of the Guideline. The Third and Seventh Circuits have applied Note 4 with different results: in the Third, the enhancement applied despite Note 4’s language because of the third-party argument outlined (and rejected) above; in the Seventh, the enhancement did not apply.

The panel sides with the Fourth and Eleventh Circuits because “under § 1591, there is no factual scenario for which an individual could receive the computer use enhancement, were [the panel] to apply application note 4.”  Applying Note 4, § 2G1.3(b)(3)(B) would only apply to convictions under 18 U.S.C. § 2422(b) for knowingly persuading, inducing, enticing, or coercing a minor to engage in prostitution.  This narrow application of § 2G1.3(b)(3)(B) leads the panel to conclude that Note 4 “can’t mean what it says.”  The panel also analyzes the drafting history of § 2G1.3(b)(3) and concludes that Note 4’s reference to subsection (3) in general—both (3)(A) and (3)(B)—was a drafting error since, prior to 2004, that language only applied to the equivalent of subsection (3)(A), not (3)(B).

In sum, “we hold that the commentary in application note 4 is ‘inconsistent with’ Guideline § 2G1.3(b)(3)(B), and we therefore follow the plain language of the Guideline alone.”  Under the plain language, the 2-level enhancement was correctly applied to Pringler since he bought the computer, showed his partner how to use the webcam, knew the partner and the minor were using the webcam to record encounters with customers, and knew of his partner’s use of the computer to advertise the minor’s services.

The panel also affirms the 2-level enhancement for undue influence of a minor under § 2G1.3(b)(2)(B).  Pringler argues that the minor voluntarily engaged in prostitution, so the undue-influence enhancement should not apply. Since the minor testified about her fear of leaving Pringler, however, and there was evidence that Pringler used the physical abuse of his partner and sexual relations with the minor as control mechanisms, the panel upholds the undue-influence application.

Mailing Credit Card Bills Satisfies Mail Fraud Jurisdiction Requirement for Ongoing Scheme

United States v. Traxler, No. 13-30681 (5th Cir. Aug. 22, 2014) (Davis, Elrod, Costa)

The receipt and payment of credit card bills by mail over time in this case is sufficient for federal jurisdiction because the use of the mails was part of the ongoing scheme.  Traxler made unauthorized purchases (estimated to be over $60,000) on her employer’s credit cards over the course of approximately year.  Traxler moved to dismiss the indictment, which only listed one Visa card statement being sent to her employer that included a personal charge, for lack of jurisdiction.  Traxler argued that the alleged mailing was a routine statement from the credit card company and did not satisfy the 18 U.S.C. § 1341 mailing requirement.

For the panel, the critical question was not whether the mailing of the statement was routine or not.  “[T]he critical question is whether Traxler’s fraud was completed prior to the transmission of documents through the mails, or if the use of the mails was part of an ongoing scheme.”  Traxler argues that her fraud was completed at the time of the unauthorized purchases, but the panel disagrees.  Since Traxler’s unauthorized use of the credit card occurred over the course of more than a year and involved multiple purchases, the panel finds that her “continued fraud depended on her employer receiving and paying the credit card bills through the mails.”  Unlike defendants whose fraud was completed before the use of mails (and did not depend on credit card payment), it was material to Traxler that her employer continue making payments for her ongoing scheme to continue.  So, the mailing of the credit card bills in this instance was sufficient for federal jurisdiction.

Not Plain Error to Admit Non-Testifying Co-Defendant’s Confession to Cellmate (Most Circuits Limit Bruton to Testimonial Statements)

United States v. Vasquez, No. 12-41194 (5th Cir. Sept. 3, 2014) (Davis, Smith, Benavides)

Defendants Vasquez and Echeverria were jointly tried for conspiracy to possess methamphetamine with intent to distribute.  The first trial ended in a mistrial.  In the second trial, the Government introduced new evidence consisting of (1) Defendant Echeverria’s confession to a cellmate that both he and Defendant Vasquez participated in the conspiracy, and (2) Defendant Vasquez’s prior drug trafficking conviction.  

On plain error review, the panel found that admission of Defendant Echeverria’s jailhouse confession through the testimony of the cellmate did not violate Bruton or Crawford even though Defendant Echeverria did not testify.  The panel cited First, Third, Fourth, Sixth, Eighth, Ninth, and Tenth Circuit cases that limit Bruton to testimonial statements only, and Defendant Vasquez never disputed that Defendant Echeverria’s jailhouse confession was non-testimonial. 

Defendant Vasquez also challenged the admission of his prior conviction for possession of heroin under Federal Rule of Evidence 404(b).  The Government presented evidence of this conviction through the testimony of the California police officer who made the 1998 arrest and testified that Defendant Vasquez “look[ed] just like the pictures” of the individual convicted in California.  In other words, the officer had no personal recollection of Defendant Vasquez and was relying on the information in the file.  The panel found this to be sufficient evidence that Defendant Vasquez committed the prior bad act.

Both defendants argued on appeal that the evidence was insufficient to show that they were knowing participants in the conspiracy, but they both failed to renew their motions for judgment of acquittal at the close of trial.  So, the convictions could only be reversed if the convictions constituted “a manifest miscarriage of justice,” and the panel found that they did not.

Convictions and sentences affirmed.