Split Created: Are Potential Affirmative Defenses Part of the Double Jeopardy Analysis?

Per United States v. Davenport, 2008 WL 732491 (9th Cir. Mar. 20, 2008)

A forensic analysis of Winston Davenport’s computer revealed more than 800 pictures and videos containing child pornography. Davenport entered a plea agreement and pled admitted that he was guilty of the each of the elements of both receipt and possession of child pornography. He was sentenced to 78 months incarceration and lifetime supervised release for each crime, the sentences to be served concurrently. Davenport appeals his conviction, arguing that it violates the Fifth Amendment prohibition on double jeopardy because the same conduct underlies both counts. As this was not raised at sentencing, the Ninth reviews for plain error.

The Fifth Amendment prohibits multiple punishments for the same offense. Two statutes do not prohibit the same offense if one “requires proof of a fact which the other does not.” Blockburger, 284 U.S. 299, 304 (1932). Receipt and possession purportedly differ from each other in two important aspects. First, receipt requires that the images themselves travel in interstate commerce, whereas possession only requires that the materials used to make the image so have traveled. Secondly, the possession charge is subject to an affirmative defense and safe harbor for those who attempt to destroy the image or turn it in to law enforcement authorities.

The Ninth Circuit panel rejects the first distinction, reasoning that satisfaction of the commerce nexus for receipt would also satisfy it for possession. It continues to also reject the second basis for distinction, reasoning that this affirmative defense, which relies on mitigation rather than directly negating an element of the crime, does not require the government to prove an additional fact, per Blockburger. The panel therefore vacates the sentence and remands for the district court to vacate one of the two convictions. Judge Graber dissents, arguing that CAs 1,4 have applied Blockburger to include affirmative defenses. She notes that these two are the only circuits to have addressed the issue, although the panel cited the CA 2 in support of its rejection of mitigating affirmative defenses. She concludes her dissent by noting that congressional intent, which is an important double jeopardy inquiry, clearly authorizes separate punishments for the two crimes.

Splits Created or Widened in the Circuits - 3/10

Several interesting decisions were handed down by the circuit courts of appeal on Monday. I was away from a computer for the last day, however, which means that some of the decisions summarized below have been pre-empted by other blogs.

• Do Police Officers Need to Clarify Ambiguous Initial Waivers of Fifth Amendment Rights After United States v. Davis? United States v. Rodriguez, 2008 WL 623982, *11 (9th Cir. Mar. 10, 2008)

The Ninth Circuit creates a circuit split in this case, which has already been extensively covered by Decision of the Day, the California Appellate Report, and the California Blog of Appeal. I won’t rehash all of the angles covered in those posts, rather I argue that the Ninth Circuit is closer to the mainstream on this issue than Decision of the Day or a quick scan of the facts might suggest.

After being Mirandized, Rodriguez responded “I’m good for tonight.” This response could mean either ‘I don’t want to talk at all tonight’ or ‘I’m completely fine to sit and chat for the evening.’ The issue in the case is whether the police need to clarify whether suspects meant to waive their rights by such ambiguous statements. Most of the circuits required clarification prior to United States v. Davis. In Davis, a suspect signed a clear waiver of his rights, and then later ambiguously referenced his right to a lawyer. The Supreme Court said that officers did not need to clarify such ambiguous invocations. Since Davis, both the Seventh and Tenth Circuit have applied the logic of Davis to initial waivers. The Ninth refuses to follow suit, and limits Davis to applying only after a clear initial waiver.

While I think cert is likely (if the government pursues the issue) and the Ninth would be reversed, this decision is not a product of the ‘Ninth Circus.’ As a purely visual matter, the panel had two Republican appointed judges. The decision itself, however, points out its strong support, noting that the majority of State Supreme Courts to have considered the issue similarly limit Davis. They further noted that neither the Seventh nor the Tenth Circuit even discussed the initial/post waiver distinction.

• Must a Court Hold a Faretta Hearing when a Defendant Moves to Proceed Pro Se? United States v. Cano, 2008 WL 623998, *4-*7 (5th Cir. Mar. 10, 2008)

This case involves the rare circumstance where both parties agree that the trial court committed reversible error. Following his trial conviction, Benjamin Cano filed two motions to proceed pro se at sentencing. In the first, he wanted to be treated as co-counsel. The trial court held a hearing on this motion, and Cano accepted representation thereafter. The second motion, filed eighteen days before sentencing, did not involve co-representation but rather self-representation standing alone. The court rejected the second motion without holding a hearing. Both the Government and Cano assert that this constitutes reversible error. In so holding, however, the Fifth Circuit states that failure to hold a Faretta hearing is per se error. This potentially broadens the split previously discussed on this blog between the Third Circuit (yes) and the CAs 4,7,9, and 10 (no)

• Is Poisoning/Drugging a Crime of Violence? United States v. Rodriguez-Enriquez, 2008 WL 624443, *3-*11 (10th Cir. Mar. 10, 2008).

The Tenth Circuit analyzes the above question for eight pages and comes to the conclusion that drugging is not a crime of violence. In the application notes of the USSG § 2L1.2(b)(i)(A)(ii), a crime of violence is defined as one that has an element of physical force. The panel notes that the term ‘physical’ can describe either the consequence of the force or the method of the force. If the former, then drugging/poisoning certainly has physical effects; if the latter, then drugging/poisoning operates through chemical rather than physical pathways.

The panel notes that panels in both the Second and Ninth Circuits have issued opinions that conflict with prior circuit decisions. The latest Second Circuit case says that it is a crime of violence; the latest Ninth says that it is not. The Fifth Circuit en banc ruled that drugging was not a crime of violence, reversing a panel opinion on that point. With the entry of the Tenth Circuit, it looks like the Second Circuit is on the short side of this widening split.

• When, other than judgment on the merits and consent decrees, is a Plaintiff the ‘Prevailing Party’ for Purposes of § 1988 Attorney’s Fees? Dearmore v. City of Garland, 2008 WL 624941, *5-*10(5th Cir. Mar. 10, 2008)

In § 1988, Congress permitted district courts, at their discretion, to award the prevailing party reasonable attorney’s fees in suits brought under certain statutes , creating an exception to the traditional American rule of civil litigation – that each side bears its own costs. The Court has defined the ‘prevailing party’ to mean a material alteration of the legal relationship of the parties with judicial imprimatur. See Buckhannon, 532 U.S. 598, 603-05 (2001). In so doing, it rejected any totally voluntary change in the legal relationship, but did not define what sort of decision fulfilled the necessary judicial imprimatur. In trying to fill this gap, “circuit courts considering this issue have announced fact-specific standards that are anything but uniform.” *7.

This case concerned a plaintiff who obtained a preliminary injunction, after which the defendant changed their behavior and mooted the case. This panel of the Fifth Circuit notes that the Ninth Circuit believes that a preliminary injunction almost always satisfies the prevailing party standard unless the plaintiff subsequently loses on the merits, whereas the Fourth Circuit holds that a preliminary injunction can never satisfy the requirements. The CAs 2,6,7, and 11 hold that a preliminary injunction satisfies the judicial imprimatur standard if the injunction is granted because of the probability of success on the merits, rather than the equities of the case.

The Fifth Circuit itself disavows any general test, preferring to apply the tests of the other circuits – “This Court has not yet created or endorsed a particular test. Instead, this Court has held that a plaintiff who obtains a preliminary injunction is not a prevailing party if he fails to qualify under any of the other circuits' tests.” *8. Applying that standard in the case, the panel notes that the district court’s opinion in granting the injunction did indicate a strong probability of success, and so the plaintiff can be considered a prevailing party. In so holding, the panel widens the split from the Fourth and does appear to create a test: “we hold that the plaintiff (1) must win a preliminary injunction, (2) based upon an unambiguous indication of probable success on the merits of the plaintiff's claims as opposed to a mere balancing of the equities in favor of the plaintiff, (3) that causes the defendant to moot the action, which prevents the plaintiff from obtaining final relief on the merits.” *12.

Splits Noted in the State High Courts - 2/25-2/26

• Is it a Fifth Amendment Violation to Deny a Sentence Reduction Under Sentencing Guideline § 3E1.1 (acceptance of responsibility) when the Defendant Remains Silent? State v. Burgess, 2008 WL 495630, *9 (N.H. Feb. 26, 2008)

This criminal appeal only raised a claim under the self-incrimination provision of the New Hampshire Constitution, rather than the Federal Constitution. The former has been interpreted more broadly than the latter, but federal precedent is used by the State courts as relevant.

In sentencing this defendant to the maximum possible sentence for his attempt to escape by using a shoelace to disable his leg restraints (interesting, this actually worked), the trial court considered the defendant's silence as a reason for not granting clemency. The Supreme Court affirmed, finding that the defendant had admitted the underlying acts and therefore there was no violation of the privilege against self-incrimination.

In the course of its determination, the New Hampshire Supreme Court noted a split of circuit authority on the interpretation of §3E1.1: "We note that a majority, if not all, of the Federal Circuit Courts of Appeal that have addressed the issue left open in Mitchell have held that it is not a Fifth Amendment violation to deny a reduction of a sentence under the acceptance of responsibility provision of the Sentencing Guidelines, section 3E1.1, because a defendant refuses to admit guilt or express remorse. See United States v. Cohen, 171 F.3d 796 (3d Cir.1999); United States v. Larkin, 171 F.3d 556 (7th Cir.1999); United States v. Villasenor-Cesar, 114 F.3d 970 (9th Cir.1997); United States v. Clemons, 999 F.2d 154 (6th Cir.1993); United States v. Frazier, 971 F.2d 1076 (4th Cir.1992); United States v. Singer, 970 F.2d 1414 (5th Cir.1992); United States v. Lyles, 946 F.2d 78 (8th Cir.1991); United States v. Rogers, 921 F.2d 975 (10th Cir.1990); United States v. Parker, 903 F.2d 91 (2d Cir.1990); United States v. Henry, 883 F.2d 1010 (11th Cir.1989); United States v. Paz Uribe, 891 F.2d 396 (1st Cir.1989). But see United States v. Frierson, 945 F.2d 650 (3d Cir.1991); United States v. Oliveras, 905 F.2d 623 (2d Cir.1990); United States v. Perez-Franco, 873 F.2d 455 (1st Cir.1989). These courts reason that, in refusing to grant a reduction of a sentence under section 3E1.1, a sentencing court is simply denying a benefit to the defendant, rather than imposing a penalty upon his exercise of the privilege."