New case asking the Supreme Court to abolish the death penalty

I was grateful to contribute to the Akron Law Review’s recent symposium issue on Justice Scalia’s legacy in criminal law and procedure.  My short piece, available here, analyzes Justice Scalia’s work in death penalty cases.  One of the issues I tackle has to do with the viability of judicial abolition on the post-Scalia Court.  I mention this now because a new petition has arrived at the Court in Hidalgo v. Arizona, which was featured on SCOTUSBlog this week and which offers the Court the opportunity to consider judicial abolition.   Neal Katyal is counsel of record for Hidalgo, and Katyal’s name certainly lends gravitas to the petition.

One thing about the petition irked me.  In its recitation of the facts, the petition simply says that Hidalgo “killed someone in exchange for $1,000 from a gang member.  In the course of that crime, he killed a bystander.”  Those facts are literally true, but woefully incomplete and santitized.

Yes, Hidalgo killed “someone,” but that someone had an identity: Michael Cordova, whom Hidalgo shot in the forehead.  And as the Arizona Supreme Court’s opinion states, Hidalgo took the $1,000 from the gang member “without knowing Cordova or why the gang wanted him murdered.”  In other words, it was just business for Hidalgo.  The “bystander” reference is also problematic.  The “bystander” was Jose Rojas, and his death was no accident; it was not as if Rojas was walking by and was randomly struck by a bullet that had ricocheted off of a cement wall.  Hidalgo, the facts from the lower court opinion show, deliberately shot Rojas in the head to prevent him from being available as a witness.  And after Hidalgo had shot both men in the head, according to the state supreme court, Hidalgo “shot each victim five more times to ensure he died.”

To be fair, Hidalgo attaches the Arizona Supreme Court opinion as an appendix.  So the complete set of facts is literally contained in the petition, if the reader ventures to the appendix to read the state court opinion.  Still, the petition’s effort to sanitize the murders here is frustrating to read.

Substantively, the per se challenge to the death penalty is not the only issue raised in the petition.  Hidalgo leads with the claim that Arizona’s list of statutory aggravating factors — 14 of them, see Ariz. Rev. Stat. 13-751 — fail to perform the constitutionally required narrowing function because they are so numerous and broad that a defendant would be death eligible for most any first-degree murder.  It’s an interesting framing of the narrowing problem, but I am skeptical of the claim for a variety of reasons, including some identified in the Arizona Supreme Court opinion.

The question is not, “how many aggravators appear on the state’s list?”  I would argue that the Eighth Amendment does not require a numerical cut-off point.  If it did, how would we know what that cut-off point is?  Rather, the question is whether each aggravator on the list circumscribes the broader class of first-degree murderers.  The mere fact that all of the aggravators added together will apply to a broader class of murderers than any individual aggravator does not make the scheme insufficiently narrow, because all of the aggravators on the list will not apply to each case (indeed, if there were a case in which all 14 aggravators applied to the defendant, it would be hard to argue that that defendant was not deserving of death-eligibility).

In other words, one could argue, the constitutionality of the State’s narrowing procedure should be judged on an as-applied basis: once the State enumerates eligibility factors in its capital sentencing scheme, the only thing left is to determine the validity of each factor as it applies to the defendant in a given case.  If one could make what amounts to a facial challenge to the list of statutory aggravators generally, then the remedy is . . . what?  Excising some?  And if the Constitution required the State to narrow its list even further, how would the Eighth Amendment — or a court — even know which aggravators had to be excised?  What standard would be employed to effect that remedy?

It seems to me that the only way to answer those questions is to evaluate each individual aggravator for its validity.  And yet Hidalgo does not allege that any of the aggravators that apply in his case were themselves constitutionally invalid.  Curious.  The State Supreme Court, in my view, properly disposed of this claim, relying on the authority of Tuilaepa v. California, and also properly understood the distinction between eligibility and selection.

But let’s assume for the moment that Arizona’s scheme of aggravators is constitutionally overbroad.  Even if Arizona’s legislature — voluntarily, or as a result of judicial compulsion — had to further narrow its list, Hidalgo’s crime surely would fit into one or more factors on a constitutionally permissible shorter list that distinguish his crime from a first-degree murder generally.  He killed more than one person in a single criminal episode, substantially premeditated the killing of Cordova, committed the Cordova murder for pecuniary gain, and the murders were closely connected to the activities of a criminal enterprise.  It is not clear, then, that Hidalgo would escape the death penalty even if the statute was narrowed further.  Perhaps this is why he focuses on the breadth of the statutory list generally, rather than on the particular aggravators in his case.  Even if we assumed the invalidity of Arizona’s list, it is not difficult to imagine a constitutionally permissible list of statutory aggravators that would make Hidalgo death-eligible.

Still, keep an eye on this case.

 

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The Automobile Exception, driveways, and cases that start with “C”

The Automobile Exception holds that police may, without a warrant, search an automobile where the police have probable cause to believe that the automobile contains contraband, or fruits, instrumentalities, or evidence of a crime.  The Supreme Court’s leading cases on the Automobile Exception all involve parties whose name starts with a “C”: Carroll v. United States, Chambers v. Maroney, Coolidge v. New Hampshire, Cady v. Dombrowski, and California v. Carney.  Weird.

An interesting Automobile Exception case is now pending before the Court on a cert petition: weirdly, Collins v. Virginia.  It asks whether the Automobile Exception extends to searches of vehicles parked in a private driveway, where no driver or other occupant is immediately present.  (SCOTUSBlog’s page is here).

In Collins, according to the Virginia Supreme Court’s description of the facts, the defendant purchased a motorcycle that was orange and black with an extended frame, modified for drag racing.  On two occasions, a motorcycle matching this description raced past Albemarle County police and was able to evade the officers who gave chase. Police concluded it was the same motorcycle.  Upon investigation, authorities learned that the motorcycle had been sold to Collins, who was told that it was stolen.  While investigating Collins in an unrelated matter, police asked Collins about the motorcycle and he denied knowing anything about it.  His Facebook page, however, contained photos that appeared to show the motorcycle in question.  One of the investigating officers — Officer Rhodes, who had chased the motorcycle in one of the earlier speeding incidents — was convinced that the motorcycle in the photos was the same one that he had chased, but Collins again denied any connection.

After gathering evidence from an informant, the Court explained, Officer Rhodes went to the Charlottesville house that was shown in one of the photos from Collins’s Facebook page.  There the officer saw a white tarp covering what he believed was a motorcycle.  Looking at what was visible beneath the tarp, Officer Rhodes says he “recognized the distinct chrome accents and ‘stretched out’ shape of the motorcycle.”  He walked up the driveway and removed the tarp, finding what he believed to be the motorcycle that had previously eluded him.  He recorded the VIN, ran a search, and learned that it was, in fact, stolen.

Collins, who had not been home, soon arrived.  Officer Rhodes knocked on the door, Collins answered, and during questioning, Collins admitted that he paid $3500 for the motorcycle and knew it had no title.  He was arrested; during the search incident, the motorcycle’s key was recovered from Collins’s pocket. He was prosecuted for receiving stolen property and was convicted.

Collins claims that the search — entering the driveway and removing the tarp — was unconstitutional, absent a warrant, because the Automobile Exception does not extend to vehicles parked in a private residential driveway (it turns out that the home is that of Collins’s girlfriend, but Collins stays in the house several nights a week, according to the cert petition).  He claims a split among the federal circuits, though Virginia claims that Collins exaggerates the split (and says it is not a “genuine” split).

In Carney, the Supreme Court articulated two rationales that justify the Automobile Exception.  First, vehicles are readily mobile.  This ready mobility creates the risk that the automobile may flee and evidence will be lost before a warrant can be obtained.  Carney gives a fairly broad reading to the ready mobility rationale, which seemingly applies to any automobile that is operable (like Collins’s motorcycle).  The ready mobility rationale, though, has a complex history.  In Carroll and Chambers, for example, the cars had been stopped on the highway.  And in Carney, the mobile home at issue was searched while parked in a city parking lot.  But in Coolidge, the Court — in a plurality opinion only — invalidated the search of a car that was initially found in the defendant’s driveway but then towed to the police station.  The Court found it significant that there was some delay in the search and that it was initially found unoccupied on private property.

Coolidge thus lends some tepid support to Collins’s petition.  So, too, does language from Carney, which says that the doctrine applies where “a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes.” (emphasis added).

One potential argument here is that the ready mobility rationale is something of a legal fiction.  A car, or motorcycle, may be “readily” mobile with the turn of a key, but the fear of the automobile fleeing, or of evidence becoming elusive, cannot be realized unless a person is there to operate the vehicle.  Compare this to the rule from Belton v. New York, which held that a search of a vehicle’s passenger compartment as incident to arrest was automatic with the arrest, even if the arrestee was secured and the vehicle was not actually within his grabbing area (the Court modified that rule in Arizona v. Gant).

One could argue, then, that the ready mobility rationale should apply only where a person is immediately present at the vehicle — such as when stopped on a highway, or when a police meet a person at the car, even on a private driveway — or there is otherwise a reasonable probability that the vehicle could be set in motion.  In other words, Collins might argue, a vehicle is not “readily capable” of use on the highways unless someone is present to drive it.  But this would likely work some change in the current understanding of ready mobility after Carney.  It also would arguably undermine the function of the rationale: the ready mobility of a vehicle in the abstract is enough to justify searching it even if no driver is present, because if the police must wait for a warrant, someone could come along and take the vehicle away before the warrant can be obtained (for example, if Officer Rhodes had to wait for a warrant, Collins could have driven the motorcycle away and disposed of it).

The second rationale for the Automobile Exception is that people have a reduced expectation of privacy in automobiles.  Even if a vehicle is not readily mobile, the Court said in Carney, “the lesser expectation of privacy” justifies the Automobile Exception.  This would be true even if the vehicle is in a residential driveway, though not in a garage.  Perhaps this is why, as the Commonwealth notes in its response, some commentators have interpreted the Carney “regularly-used-for-residential-purposes” language as applying to garages but not to driveways.

Collins’s best argument as to this rationale would seem to be that the expectation of privacy, even if ordinarily diminished, is at least heightened when the vehicle is in a garage or other interior structure associated with the home, or where the vehicle is within the curtilage of the home (including, as Collins argues, the driveway), given the protection afforded to the curtilage in other Fourth Amendment contexts.  Still, though, the curtilage is not free from law enforcement observation (see the aeriel surveillance cases, e.g., California v. Ciraolo), nor is it free from law enforcement entry within the scope of an implied license.  See Florida v. Jardines.  The question is whether law enforcement, even with a license but without a warrant, may enter the curtilage and remove a tarp from a covered automobile for purposes of positively identifying it.

Collins’s battle is likely an uphill one, and there are sound reasons for keeping the Automobile Exception’s reach robust.  But the Court has, in recent terms, extended some Fourth Amendment protections.  And this case raises enough open questions about the Automobile Exception that the Court could supply some needed clarity by granting cert.

Or, perhaps, the Court might simply like to add another “C” case to its Automobile Exception jurisprudence.

 

When does robbery of a local brothel substantially affect interstate commerce? Apparently, pretty much always.

Last year, I posted about the Supreme Court’s review of, and unsurprising decision in, Taylor v. United States.  That case, up from the Fourth Circuit, held that the jurisdictional element of the Hobbs Act, 18 U.S.C. 1951, is satisfied where there is a robbery involving a drug dealer.

This past week, the Fourth Circuit issued another opinion raising a similar question about the application of the “affects commerce” element of the Hobbs Act to an unlawful business operation.  This time, rather than drug dealers, the court in United States v. Lopez considered the 2007 robbery of a Maryland brothel.

As the court described the facts of the case, the Prince George’s County brothel was located in a first-floor apartment, staffed by a Adelaida Garcia-Calderon and a doorman/money collector.  Two young men entered, demanded money, tied the doorman’s feet and hands, and then one of them raped Garcia-Calderon at knife-point.  Another man, Carlos Cordon, walked in on the robbery and was stabbed to death by one of the perpetrators; Cordon’s body was found behind the apartment building.  Garcia-Calderon and the doorman survived, but the case remained unsolved for several years.  Finally, local police were able to match the DNA from the crime scene to Miguel Ramon Cerros-Cruz, an MS-13 member, and Alexsi Lopez.  Police also had the testimony of an MS-13 member who was incarcerated with Lopez and overheard Lopez confess to the brothel robbery and killing, while also implicating Cerros-Cruz.

Lopez was indicted for violating, and conspiring to violate, the Hobbs Act.  (Although he was 17 at the time of the crime, Lopez was 24 at the time of trial, and was subject to trial in federal district court; the five-year statute of limitations was also extended because of the DNA testing, see 18 U.S.C. 3297).  Cerros-Cruz pleaded guilty; Lopez went to trial and was convicted.  The court sentenced Lopez to 20 years in prison.  (Though I remain curious: if there was evidence that the perpetrators committed the robbery, rape, or killing in order to maintain or increase their standing with MS-13, why not charge the case under VICAR, 18 U.S.C. 1959?).

The Fourth Circuit rejected Lopez’s claim on appeal that there was insufficient evidence to show the required effect on commerce.  Citing the familiar line that the Hobbs Act requires only a de minimis effect on commerce, the court noted that a brothel — like drug dealing — is an “inherently economic enterprise.”  Moreover, the court noted, in many cases, including this one, the brothel workers will travel across state lines.  The Government also provided evidence that the brothel used condoms manufactured out-of-state, and that Lopez and Cerros-Cruz targeted the brothel because of its nature as an illegal business that dealt in cash.

Although this case feels much like Taylor, that case expressly limited its holding to situations involving drug dealers as targets and to “drugs or drug proceeds,” because the federal government has jurisdiction over those markets.  “We do not resolve what the Government must prove to establish Hobbs Act robbery where some other type of business or victim is targeted,” the Court said.  After Taylor, it is worth asking whether a small-scale, local brothel engages in the kind of commercial activity over which the United States exercises jurisdiction the way that it does with respect to the controlled substance market.  After all, the Taylor decision was arguably inevitable in light of Gonzales v. Raich, which expressly decided that Congress had the power to regulate the interstate drug marketplace by reaching even wholly intrastate, locally grown marijuana.

The Fourth Circuit did not have a similar precedent on which it could rely with respect to federal jurisdiction over an interstate brothel marketplace.  Still, existing Hobbs Act case law seems to support the Lopez holding. This includes the more general rationale offered in Taylor — citing Raich — with respect to aggregation of economic activity and Congress’s ability to reach intrastate incidents of an activity that is part of a broader class of activity that is within Congress’s reach.  See also Perez v. United States.  Just as drug dealing is a “moneymaking endeavor,” as Taylor described it, so, too, is prostitution.   To reach this activity through the Hobbs Act, though, one must conclude that robbery of a brothel would also effect an interstate brothel marketplace over which the United States exercises jurisdiction.

In addition, multiple lower federal court cases recognize that where the robbery depletes the assets of a commercial establishment, then this is enough to satisfy the jurisdictional element.  But does the Lopez case involve the depletion of assets of a business, or simply of the individual sex worker or brothel manager?  Presumably, of course, someone else  — to whom Garcia-Calderon answers — is getting a cut of the cash.  But is that cash used for purposes connected with the business (such as to buy condoms, or bed linens, or other items associated with pursuing a business that involves sexual activity)?  Also, the fact that the condoms came from out-of-state provides a thin basis for satisfying what should be a more demanding jurisdictional analysis, unless the robbers took condoms, as well.  Nonetheless, federal courts have found the Hobbs Act satisfied on much thinner grounds than exist in Lopez.

Still, it is worth considering the gravamen of Justice Thomas’s Taylor dissent, and the efforts that Justice Alito made to limit the reach of the Taylor holding (perhaps to satisfy some of Justice Thomas’s concerns).  If the Fourth Circuit is correct that the brothel’s character as a commercial establishment, even an unlawful one, is by itself sufficient to satisfy the Hobbs Act (and thus the Commerce Clause), then it would seem that any robbery of any business — no matter how small, or how local, and no matter the volume of its business nor the amount of money that it makes — would be enough to justify the exercise of federal jurisdiction under the statute.  One wonders whether that rule would be consistent not only with the statutory definition of “commerce,” but also with a Constitution that denies a general police power to the federal government.

Perhaps the Fourth Circuit, even if ultimately correct, could have offered a more substantial analysis with respect to the effect on commerce.  It is one thing to acknowledge that the Hobbs Act incorporates all of Congress’s commerce power.  It is quite another to interpret the Hobbs Act in a way that gives Congress more than that.

 

Can you evade federal prosecution if your heroin distribution is a religious exercise?

From the United States Court of Appeals for the Eighth Circuit, an interesting case on the limits of religious freedom in America, particularly at a time when we are debating the scope of statutes designed to enhance protections for religious exercise.  According to the court’s recent opinion in United States v. Anderson, the defendant (Timothy Anderson) was indicted for violating the Controlled Substances Act and admitted to distributing heroin.  But,  Anderson said, he is “‘a student of Esoteric and Mysticism studies’ who created a ‘religious non-[p]rofit’ to distribute heroin to ‘the sick, lost, blind, lame, deaf, and dead members of Gods’ [sic] Kingdom.'”  Relying upon the protections of the Religious Freedom Restoration Act (RFRA), Anderson argued that his heroin distribution amounted to exercising a “sincerely held religious belief.”  He also said he had no intention of stopping such distribution because to do so would compromise his religious faith.

The Eighth Circuit (correctly) rejected the claim and affirmed the conviction.  That seems unremarkable.  What is remarkable about the case, though, is that the court still required the Government to prove a compelling interest, and the use of the least restrictive means, under RFRA.  It is important, then, to remember the difference between the constitutional standard for religious exercise and the statutory standard that RFRA established.  The First Amendment standard remains governed by Employment Division v. Smith, which says that the Government need not satisfy strict scrutiny as long as it is applying a neutral and generally applicable law, even where the application of that law burdens religious exercise.  Under Smith, there is no question that application of the CSA to drug traffickers would be generally permissible, as having a rational basis.  RFRA, however, added a new layer to religious freedom law, increasing the Government’s burden.

Still, in Anderson, the Eighth Circuit said it had no difficulty finding a compelling interest, holding that “prosecuting Anderson under the CSA would further a compelling governmental interest in mitigating the risk that heroin will be diverted to recreational users.”  The chief ground for the court’s decision, then, was that Anderson distributed the heroin to those who were not sacramental users.  So note that even if Anderson has a sincere religious belief about the distribution of heroin, that belief is not enough to protect him once he distributes the drug to others for recreational use — the compelling interest relates to the end users, not Anderson himself.

Therefore, Anderson’s case is distinct from cases like Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, in which the Supreme Court affirmed a preliminary injunction granted to a Brazilian-based Christian sect that uses a sacramental tea (hoasca) during communion.  One of the ingredients in the tea is dimethyltryptamine (DMT), which is a Schedule I controlled substance.  Customs officials intercepted the tea on its way to New Mexico, and threatened the church with prosecution.  But the Supreme Court affirmed an injunction on enforcement against the church, holding that the Government had failed to meet its burden under RFRA.  Consequently, rather than distinguish O Centro based on the comparative dangers of heroin as compared to hoasca (or peyote), the Eighth Circuit in Anderson instead distinguished O Centro on the ground that the heroin was not being distributed for sacramental usage.

What if, though, the end users claimed they were using the heroin for some sacramental purpose?  What if dealers, or co-conspirators in the trafficking, claimed that it was their understanding that the heroin would go only to those who would use it for sacramental purposes?

That, of course, is a very different case, but not one that is entirely unforeseeable. Indeed, the Eighth Circuit cited United States v. Christie, a Ninth Circuit case in which the operators of the “Hawaii Cannabis Ministry” distributed cannabis to its members (apparently, membership was not difficult to achieve).  But in that case, the ministry did not tell members that the cannabis was only for religious use, as opposed to recreational use.  What if it had?  If the Government has a compelling interest in preventing the use of cannabis for recreational, as opposed to religious, purposes, then doesn’t this require a fairly searching inquiry into the nature of the use and the sincerity of the user’s beliefs?  Otherwise, the Government could always simply say that there is a risk that even ostensible religious use would become recreational, and therefore carry its burden under RFRA, in light of Christie’s theory.  Indeed, the Anderson court noted that the district court in St. Louis did not evaluate the sincerity of Anderson’s religious beliefs, but rather assumed the sincerity of those beliefs and applied RFRA.

Is there a meaningful risk that drug traffickers and users will often, or increasingly, employ a religious-based defense to drug prosecutions, based on RFRA?  Probably not.  And even in cases in which RFRA is used as a tool for drug defendants, like Anderson, the Government’s interests in combating drug abuse are likely to carry the day.  Still, it is notable that statutory religious freedom law places the Government in such a defensive posture in serious drug cases.

Hat tip to IJ’s “Short Circuit” for spotting this one.

Suspected thief turns out to be felon in possession, but gun turns out to be inadmissible

Sometimes a federal gun possession crime results from an investigation specifically directed at the gun offense.  Sometimes, however, gun crimes result from investigations that have nothing to do with guns.  Just ask Phillip David Hernandez, who had an encounter with police as he walked next to a construction site that was located in a high-crime area and that was known for being the target of thieves interested in the construction materials there.  Did the police encounter turn up any stolen construction materials?  Nope.  It turned up a gun – which, as a convicted felon, Hernandez was not permitted to possess.  His case raises the question: was he “seized” for purposes of the Fourth Amendment when police questioned him from their patrol vehicle as he walked near the construction site?  If not, then the gun is admissible against him because the encounter is a “consensual” one, and does not implicate the Fourth Amendment.  But if it was a seizure, then the police have to demonstrate reasonable suspicion for the stop.  Can they?

According to the Tenth Circuit’s opinion in United States v. Hernandez, in October 2014, Denver police spotted Hernandez walking next to the construction site.  He wore all black clothing and carried two backpacks.  The site had been the subject of recent thefts of various materials, including sheet metal and copper piping.  Police suspected Hernandez might be serving as a lookout for thieves, though there was no one else around.  The officers also found it odd that Hernandez did not use the sidewalk on the other side of the street, but instead walked next to the construction area, essentially in the street.

When the officers pulled alongside him, Hernandez kept walking, and the officers followed along in a moving vehicle.  They did not display weapons nor raise their voices.  When asked where he was going and where he had been, Hernandez said he was at his grandmother’s and was headed home.  He then said, upon being asked, that he could not remember his grandmother’s address.  When asked if he would stop walking and talk to the officers, Hernandez complied.  When asked, he gave his real name but a false birthdate.  The officers pulled up his information on their computer, and it showed Hernandez’s mug shot and that he had violated parole, for which there was an active warrant.  He was informed of the warrant and approached by the officers on foot, and he began to walk away.  He reached for his waistband and an officer asked if he had a gun.  He said “yes,” the officer grabbed his arm, and a revolver fell to the ground.

Hernandez was indicted for being a felon-in-possession, 18 U.S.C. 922(g)(1), and filed a motion to suppress, which the district court granted.  The Government appealed.  The Tenth Circuit affirmed the suppression of the gun.

Was Hernandez seized?  Yes, this was a seizure that required reasonable suspicion, according to the court.  While this began, as do many police encounters on the street, as a consensual encounter that required no justification, it became a seizure when the officers asked Hernandez to stop walking and talk to them.  This was the point at which a reasonable person would not have felt free to terminate the encounter and continue on his way – considering that that it was dark, there were no other people around, and the request to stop was made by two uniformed officers who had been following him.  As the court put it, “a reasonable person would have believed that compliance with the ‘request’ was not optional.”

Now that we know he was seized, was there reasonable suspicion that would have justified the seizure?  No, the court said.  The police stop of Hernandez was, rather, based on “inchoate suspicions and unparticularized hunches,” the court wrote.  They had no evidence specific to Hernandez that he had committed any crime, and the mere fact that he was walking next to a location that had been the subject of previous criminal activity is not enough to make their suspicion of him reasonable.  Neither was the fact that he was in a “high-crime” area, or that he wore all black and had two backpacks, or that he chose not to use the sidewalk.

What about the fact that he could not recall his grandmother’s address?  The court found that the Government had not relied upon this argument previously, and should not be able to rely upon it now on appeal.  Still, that fact would not be entitled to much weight, the court said.  When each officer testified, neither relied upon this fact to establish their suspicions about Hernandez, “which,” the court said, “is understandable because ordinary experience tells us that a grandchild who knows the familiar way to his grandmother’s house may well not know her exact street address.”

A final aspect of this case is notable.  Could the Government have argued that the finding of the gun was sufficiently attenuated from the initial unlawful stop, given the existence of the active warrant for Hernandez, a la Utah v. Strieff?  Recall that in Strieff, the Court applied the attenuation doctrine to hold that the discovery of an untainted warrant breaks the link to an unlawful Terry stop.  As it happens, Strieff was decided after briefing and argument in Hernandez.  But the Government never relied on attenuation in the district court, and so had waived that argument on appeal.  Before Strieff had been decided, the Tenth Circuit noted, two other circuits followed the same rule that was ultimately recognized by the Supreme Court in Strieff.  So the attenuation argument was available to the Government, but the Government did not pursue it.

Query whether, had the attenuation argument been properly before the Tenth Circuit, Strieff would make the gun admissible.  Applying the Brown factors, as did Strieff, the Government would have had a persuasive argument that the discovery of the warrant here was an intervening circumstance that makes the gun admissible.

Does asset forfeiture apply to drug prosecution defendant who did not directly benefit from the criminal conspiracy?

In March of this year, I posted about an interesting Sixth Circuit case, United States v. Honeycutt.  There, two brothers – Terry and Tony Honeycutt – ran an Army surplus store in Chattanooga, out of which they sold a legal product called Polar Pure.  That product is a water purifier that contains iodine, and although it has other lawful uses, it is often used in making methamphetamine.  According to the court’s opinion, this store was the only one locally that sold Polar Pure, it was kept behind the counter, and it eventually became the store’s highest grossing-item.  After the store closed in the wake of an investigation, red phosphorous meth labs became “rare” and “fairly non-extent” in the region, according to a DEA agent.

Terry went to trial and was convicted on the ground that he knew, or had reasonable cause to believe, that he was selling Polar Pure to customers who were using it to manufacture meth.  The Sixth Circuit upheld the conviction on this ground.  Tony had earlier pleaded guilty.

Today, the Supreme Court granted certiorari in the Terry Honeycutt case.  The Court has agreed to review an issue distinct from the sufficiency of the evidence issue that I discussed in March.  The district court had declined to order forfeiture under 21 U.S.C. 853(a).  The Sixth Circuit reversed, applying joint and several liability under 853(a) and relying upon circuit precedent that interprets drug forfeiture and RICO forfeiture statutes co-extensively.  The lower court thus agreed with a number of other circuits which hold that forfeiture in the drug context is not limited to property that the defendant acquired by himself.  Rather, as the Fourth Circuit put it, and as the Sixth Circuit approved, forfeiture under section 853(a) applies even to property derived indirectly from other co-conspirators or those who acted in concert with the defendant.  See United States v. McHan, 101 F.3d 1027 (4th Cir. 1996).

Tony’s guilty plea resulted in his forfeiture of $200,000 in proceeds.  Terry’s case involves the remaining $70,000.

The Supreme Court will now consider whether the Sixth Circuit was correct, that joint and several liability applies to forfeiture through the drug crime statutes.  SCOTUSBlog’s page is here, with the cert petition and brief in opp.

 

Can medical marijuana card holders buy or possess guns?

Following up on my last post – which dealt with the Ninth Circuit’s decision on the Justice Department’s power to proceed with criminal prosecutions under the Controlled Substances Act, in light of an appropriations rider defunding some such prosecutions – the Ninth Circuit yesterday issued another important decision on federal criminal laws related to drugs, this time in the context of federal gun law.  The decision in Wilson v. Lynch is here.

It is a federal crime for an unlawful drug user or addict to possess a firearm.  18 U.S.C. 922(g)(3).  It is also a federal crime to sell a firearm to a person with knowledge, or reasonable cause to believe, that the person is an unlawful drug user or addict.  18 U.S.C. 922(d)(3).  It is further unlawful to manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance (like marijuana).  21 U.S.C. 841(a).

According to the court, Rowan Wilson was issued a Nevada marijuana registry card under Nevada state law.  But when she went to purchase a gun from a gun dealer in Nevada, the sale was denied on the ground that she was an unlawful user, or reasonably believed to be, of a controlled substance.  The seller was aware of the ATF’s Open Letter of September 21, 2011, which instructs firearms licensees that they cannot sell a gun to someone who is an unlawful user, even if state law allows use of medical marijuana.  Wilson filed suit against the Attorney General of the United States and the ATF, challenging the constitutionality of sections 922(g)(3) and 922(d)(3), as well as the Open Letter and the ATF’s implementing regulations (27 C.F.R. 478.11).

The Ninth Circuit held that she lacked standing to challenge section 922(g)(3) because she does not allege that she is an unlawful user or an addict, nor does she allege that she received or possessed a firearm, for which she would be subject to prosecution.  But the Ninth Circuit held that she had standing to challenge section 922(d)(3), because the legal standard under that statute prevented her from purchasing a firearm (and thus she was injured).  So the court proceeded to consider her constitutional claims on the merits.

The leading issue was whether the laws violated her Second Amendment rights.  The Court said it did not.  Binding precedent in the Ninth Circuit holds that the Second Amendment does not protect unlawful drug users.  See United States v. Dugan, 657 F.3d 998 (9th Cir. 2011).  However, the court took it as true that Wilson was not actually an unlawful drug user (she said that although she has a card, she has chosen not to use medical marijuana).  So the court could not apply its precedent as applied to someone like Wilson.

Instead, applying another circuit precedent, United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013),  that adopts intermediate scrutiny under the Second Amendment, the court said that the federal laws at issue did not severely burden the exercise of her right to possess a firearm; they merely prohibited the sale of a firearm to her.  The court further explained that recent research showed a “significant link” between drug use (including marijuana use) and violence, conclusions supported by the legislative branch, as well.  “It is beyond dispute,” the court said, “that illegal drug users, including marijuana users, are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior.”  The court also said that such users are more likely to have “negative interactions with law enforcement officers” and to be connected to “black market sources who themselves frequently resort to violence.”

So, despite the fact that registry cardholders and unlawful users are not necessarily the same, there is at least a reasonable fit between the federal laws here and the Government’s interest in reducing gun violence.  Even assuming that such laws could lead to some burden on Second Amendment rights, those burdens are minimal, the court held.

The Court also denied Wilson’s challenges based on the First Amendment, the Due Process Clause and the implied equal protection component of the Fifth Amendment, and the Administrative Procedures Act.

One key to understanding the significance of the issues in this case is the court’s assessment of the links between marijuana use and violence.  Although this assessment could have been more comprehensive in the opinion, it is worthy of serious consideration, and undermines many of the arguments made by advocates of more liberal marijuana laws.  Another key, though, is the holding that Wilson did not have standing to challenge section 922(g)(3).  In holding that the challenged laws – 922(d)(3), the regs, and the Open Letter – did not severely burden her core Second Amendment rights, the court relied upon the fact that she could have amassed guns before getting her registry card, and that she could have surrendered her registry card later in order to buy a gun.  See Slip op. at 14-15.  But the point of her challenge was to say that, as long as she is a registry card holder, she now cannot lawfully possess a gun for purposes of self-defense because of section 922(g)(3).  Is it, then, illusory to say that the sale provisions do not severely burden her rights, when she could not lawfully possess a gun anyway?  In other words, Wilson might say, while the sale ban in federal law might not have severely burdened her rights, the possession ban does.  Hence the importance of the finding that she did not have standing to challenge the possession statute.

Although the result may turn out to be the same – particularly if based on the link between drug use and violence and the reasonableness of the Government’s interests in forbidding gun possession by drug users – this question would at least be far trickier for federal courts if it is brought by someone with standing to challenge the possession ban of section 922(g)(3).