On Point

Jonathan Edward Boyer v. Louisiana, USSC 11-9953, 4/29/13

United States Supreme Court order and opinions, dismissing, as improvidently granted, the writ of certiorari to review State v. Boyer, 56 So. 3d 1119 (La. Ct. App. 2011).

As explained in our post on the grant of certiorari, the issue was whether and how the state’s failure to fund indigent defense should count against the state in analyzing the defendant’s Sixth Amendment speedy trial claim under Barker v. Wingo, 407 U.S. 514 (1972). It took seven years to bring Boyer to trial. While the record showed a number of causes for the delay, the state court concluded the “largest part” of the delay was due to the state’s “funding crisis”; yet it discounted that delay as “out of the State’s control,” 56 So. 3d at 1142, 1145. 

The Court now dismisses the petition as improvidently granted because, according to a concurrence by Alito (joined by Thomas and Scalia), “the record simply does not support the proposition that much—let alone ‘most’—of the delay was caused by the State’s failure to fund the defense.” (Concurrence at 4). Indeed, the concurrence claims, “the record shows that the single largest share of the delay in this case was the direct result of defense requests for continuances, that other defense motions caused substantial additional delay, and that much of the rest of the delay was caused by events beyond anyone’s control.” (Concurrence at 3).

Breyer, Ginsburg, Kagan, and Sotomayor dissent, saying the narrow issue of how to weigh the lack of funding can still be addressed regardless of the other factors relating to delay. (Dissent at 7). The question should not have to wait for another day, given what may well be “larger, systemic problems in Louisiana.” (Dissent at 9).

Questions Presented:

1. Whether the crime of distribution of drugs causing death under 21 U.S.C. § 841 is a strict liability crime, without a foreseeability or proximate cause requirement.

2. Whether a person can be convicted for distribution of heroin causing death utilizing jury instructions which allow a conviction when the heroin that was distributed “contributed to” death by “mixed drug intoxication,” but was not the sole cause of death of a person.

Lower court decision: United States v. Burrage, 687 F.3d 1015 (8th Cir. 2012)

Docket

Scotusblog page

This case is important for lawyers practicing in federal courts in Wisconsin, as it will resolve a split between the Seventh and Eighth Circuits. In this case, the Eighth Circuit approved a jury instruction containing language meant to elaborate on the statutory requirement that a death “result from” the use of a substance the defendant’s distributed. The instruction told the jury it need  find only that the substance was “a contributing cause” of the victim’s death, which it defined as “a factor that, although not the primary cause, played a part in the death.” The Seventh Circuit held that very similar language in a jury instruction merited a new trial, as it arguably confused the jury about the minimum legal causation needed to convict. United States v. Hatfield, 591 F.3d 945, 947-51 (7th Cir. 2010).

As Hatfield notes, 591 F.3d at 947, there is “a proliferation of unhelpful terminology” about causation–something evident in Burrage’s proposed jury instruction, which confuses “proximate cause” (about foreseeability of harm) with whether something was a substantial factor in causing the harm, 687 F.3d at 1020 n.3.  The case will thus be a vehicle for clarifying the causation standard and what the jury must be told about it. Hatfield also notes the cases are “unanimous” that § 841 has no proximate cause or foreseeability requirement, but does (and may) impose strict liability, 591 F.3d. at 950; thus, the grant on the first issue apparently springs not from a circuit split but from some other perceived need to clarify the meaning of the statute.

It does not appear this case will have any impact on Wisconsin’s reckless homicide analog, § 940.02(2) (the “Len Bias” law). Under State v. Bartlett, 149 Wis. 2d 557, 439 N.W.2d 595 (Ct. App. 1989), our statutory requirement that the victim died “as a result of” the use of the substance imposes a substantial factor test. See WIS JI–CRIMINAL 1021 at 2 n.10. To establish that the conduct was a “substantial factor,” the state must prove that “‘the accused’s conduct was an antecedent ‘but for’ which the result in question would not have occurred.’ However, this is not always enough. The state must further establish that ‘the harmful result in question be the natural and probable consequence of the accused’s conduct.'” Bartlett, 149 Wis. 2d at 566. That is essentially how Burrage asked the judge to instruct the jury (though, as noted, he confusingly called it “proximate cause”). As to the second issue raised in the grant, that is seemingly addressed by § 940.02(2)(a)1., which provides the statute applies “[w]hether the human being dies as a result of using the controlled substance … by itself or with any compound, mixture, diluent or other substance mixed or combined with the controlled substance ….”

Adrian Moncrieffe v. Eric Holder, Attorney General, USSC 11-702, 4/23/13

United States Supreme Court decision, reversing Moncrieffe v. Holder, 662 F.3d 387 (5th Cir. 2011)

In an important case for noncitizens charged with marijuana delivery or distribution offenses, the Supreme Court holds that a conviction for marijuana distribution under state law is not an “aggravated felony” that requires deportation if the conviction fails to establish the offense involved either remuneration or more than a “small amount” of marijuana.

Federal immigration law requires deportation of any noncitizen convicted of an “aggravated felony,” which is defined to include a felony drug trafficking conviction under the federal Controlled Substances Act or a conviction under a state law that prohibits conduct punishable as a felony under the CSA. (Slip op. at 1-3). Determining whether a state conviction is an “aggravated felony” involves a “categorical approach” that looks not to the facts of the particular conviction, but to whether the state statute defining the crime of conviction categorically fits within the “generic” federal definition of a corresponding aggravated felony. (Slip op. at 4-5). “… [T]o satisfy the categorical approach, a state drug offense must meet two conditions: It must ‘necessarily’ proscribe conduct that is an offense under the CSA, and the CSA must ‘necessarily’ prescribe felony punishment for that conduct.” (Slip op. at 6).

Moncrieffe was convicted in Georgia of possession of 1.3 grams with intent to distribute. There is no question that it is a federal crime to possess marijuana with intent to distribute, thus satisfying the first condition. But that is not enough, “because the generically defined federal crime is ‘any felony punishable under the Controlled Substances Act,’ 18 U. S. C. §924(c)(2), not just any ‘offense under the CSA.’ Thus we must look to what punishment the CSA imposes for this offense.” (Slip op. at 7).

Ordinarily, a conviction involving less than 50 kilograms of marijuana is a felony under the CSA. But there’s an exception: Distribution of a “small amount” of marijuana for “no remuneration” is a misdemeanor. (Slip op. at 8). “These dovetailing provisions create two mutually exclusive categories of punishment for CSA marijuana distribution offenses: one a felony, and one not.” (Slip op. at 8-9). The only way to know whether a marijuana distribution offense is “punishable as a felony” under the CSA is to know whether the conditions that make the offense a misdemeanor are present or absent. (Slip op. at 9). Applying that test to Moncreieffe:

A conviction under the same Georgia statute for “sell[ing]” marijuana, for example, would seem to establish remuneration. The presence of remuneration would mean that [the misdemeanor exception] is not implicated, and thus that the conviction is necessarily for conduct punishable as a felony under the CSA …. In contrast, the fact of a conviction for possession with intent to distribute marijuana, standing alone, does not reveal whether either remuneration or more than a small amount of marijuana was involved. It is possible neither was; we know that Georgia prosecutes this offense when a defendant possesses only a small amount of marijuana, … and that “distribution” does not require remuneration, … So Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor. Ambiguity on this point means that the conviction did not “necessarily” involve facts that correspond to an offense punishable as a felony under the CSA. Under the categorical approach, then, Moncrieffe was not convicted of an aggravated felony. (Slip op. at 9  (citations omitted)).

….

In other words, not only must the state offense of conviction meet the “elements” of the generic federal offense defined by the INA, but the CSA must punish that offense as a felony. Here, the facts giving rise to the CSA offense establish a crime that may be either a felony or a misdemeanor, depending upon the presence or absence of certain factors that are not themselves elements of the crime. And so to qualify as an aggravated felony, a conviction for the predicate offense must necessarily establish those factors as well. (Slip op. at 10).

The focus, then, is on whether “the record of conviction of the predicate offense necessarily establishes conduct that the CSA, on its own terms, makes punishable as a felony.” (Slip op. at 12). This should aid some noncitizens convicted under Wisconsin law–namely, those convicted under Wis. Stat. § 961.41(1)(h)1. or (1m)(h)1., which cover distribution or delivery (or possession with intent to distribute or deliver) of less than 200 grams. Surprisingly, the CSA doesn’t define the “small amount” that makes an offense a misdemeanor; the Bureau of Immigration Appeals uses 30 grams as a “guidepost,” but the Court does not decide the cutoff itself. (Slip op. at 8 n.7).  Presumably, a conviction for anything less than 200 grams doesn’t necessarily mean that more than 30 grams was involved. Nor does it establish remuneration, as distribution or delivery do not require the exchange of money. Wis. Stat. § 961.01(6) and (9).

But note well the limits of this opinion:

Escaping aggravated felony treatment does not mean escaping deportation, though. It means only avoiding mandatory removal. … Any marijuana distribution offense, even a misdemeanor, will still render a noncitizen deportable as a controlled substances offender. (Slip op. at 19 (emphasis added)).

So read this opinion carefully if you are representing a noncitizen marijuana offender, and be aware of its narrow application.

Fond du Lac County v. Ian A. Niquette, 2012AP2708, District 2, 4/24/13; court of appeals decision (1-judge, ineligible for publication); case activity

Police had probable cause to have Niquette do a PBT despite his good performance on the field sobriety tests, applying State v. Felton, 2012 WI App 114, ¶10, 344 Wis. 2d 483, 824 N.W.2d 871:

¶5        …. Niquette crashed his truck into the back of a parked vehicle in a twenty-five-mile-per-hour speed zone with enough force to flip his vehicle onto its side. Niquette reeked of alcohol and admitted that he had been drinking and driving. Common sense dictates that not only did the deputy have more than reasonable suspicion to investigate but she had probable cause to believe Niquette had been driving drunk so as to request Niquette to submit to a PBT.

City of Oshkosh v. Ernest D. Lehl, 2012AP2717, District 2, 4/24/13; court of appeals decision (1-judge, ineligible for publication); case activity

Police had reasonable suspicion to extend a traffic stop and request Lehl to perform field sobriety tests because there were specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted the intrusion of the extended stop. State v. Post, 2007 WI 60, ¶10, 301 Wis. 2d 1, 733 N.W.2d 634.

The officer’s attention was drawn to Lehl’s vehicle because it was coming from an area that was blocked off due to construction and was the site of prior illegal activity. (¶2). While following the vehicle he noticed the license plate lights were not functioning and a turn signal remained on, including after the vehicle went straight at an intersection, suggesting driver error. (¶3). After stopping the car, the officer noted an odor of alcohol and Lehl had “bloodshot, watery, glazed over eyes.” (¶4). Lehl admitted having had “mixed drinks with whiskey” while fishing. While the officer followed Lehl for twenty-one blocks without observing other law violations or questionable driving and did not recall Lehl exhibiting “motor coordination” problems while he was seated in his vehicle, “[l]aw enforcement officers are not required to rule out the possibility of lawful behavior—unimpaired driving—before conducting an investigation into potentially unlawful behavior—impaired driving.  See State v. Waldner, 206 Wis. 2d 51, 59, 556 N.W.2d 681 (1996). ” (¶11).

State v. Danny F. Anton, 2012AP1165-CR, District 2, 4/23/13; court of appeals decision (not recommended for publication); case activity

Ineffective assistance of counsel

In a fact-specific discussion that precludes summary here, the court of appeals holds Anton’s trial attorney was not ineffective for: failing to object to testimony about telephone calls between Anton and a detective, as the evidence was not prejudicial (¶¶10-13); failing to call two witnesses, as counsel’s decision not to call them was reasonable (¶¶14-22); failing to object to admission of the victim’s entire statement, as Anton doesn’t develop his argument that counsel was deficient and any failure to object was not prejudicial (¶¶23-24); or failing to persuade Anton to testify, as counsel had reasonable tactical justifications for telling Anton he did not need to testify (¶¶25-26).

Sentencing

The trial court engaged in a proper exercise of sentencing discretion under State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197, and Anton’s 40-year sentence for four counts of child sexual assault was well within the maximum (he faced 140 years) and is not so excessive as to shock public sentiment. (¶¶28-32). Anton’s argument to the contrary is “undeveloped” and “conclusorily” stated. (¶¶28, 31).

State v. Gerald D. Taylor, 2013 WI 34, on review of court of appeals certification; case activity

In a split decision, the supreme court holds that a defendant is not entitled to an evidentiary hearing under the long-established procedure established by State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), even though the trial court misinformed him of the maximum penalty he faced:

¶8        We hold that the defendant’s plea was entered knowingly, intelligently, and voluntarily when the record makes clear that the defendant knew the maximum penalty that could be imposed and was verbally informed at the plea hearing of the penalty that he received. Therefore, the circuit court did not err by denying Taylor’s postconviction motion to withdraw his no contest plea.

¶9        Further, plea withdrawal “remains in the discretion of the circuit court and will not be disturbed unless the defendant shows that it is necessary to correct a manifest injustice.” State v. Cross, 2010 WI 70, ¶4, 326 Wis. 2d 492, 786 N.W.2d 64; State v. Cain, 2012 WI 68, ¶20, 342 Wis. 2d 1, 816 N.W.2d 177. Taylor has not demonstrated that withdrawal of his plea is necessary to correct a manifest injustice. Accordingly, the judgment and order of the circuit court is affirmed.

Taylor was charged with a Class H felony as a repeat offender based on prior misdemeanor convictions. (¶11). This carried a basic maximum penalty of six years of imprisonment.  The repeater allegation added two years of possible confinement, making the maximum eight years. (¶¶11, 100). At the plea colloquy, the court stated that Taylor was pleading as a repeater, but said that the maximum penalty was only six years. (¶16). Taylor was later sentenced to six years. (¶17).

Taylor moved for plea withdrawal based on the defective plea colloquy. The supreme court, departing from Bangert, denied the motion without a hearing because the charging documents, pre-plea hearings, and the plea questionnaire, showed the Taylor had been told he faced 8 years.  (¶¶15-16, 35-39). The majority holds that “on this record,” Taylor knew the correct maximum penalty was eight years and thus his plea was knowing and voluntary. (¶¶28, 39, 42, 45, 53, 54, 55).

The majority further found no manifest injustice because Taylor does not—indeed, cannot—argue that he did not enter a knowing plea to the “underlying” felony charge. (¶¶43-54).  If he had been given more than six years his remedy would be commutation of any time imposed because of the repeater allegation, not plea withdrawal. (¶45 nn. 13, 15).

Justice Prosser wrote a concurrence criticizing the majority for its separate manifest injustice analysis, saying it was unnecessary given the conclusion that the record shows Taylor’s plea was valid. (¶¶68-71).

Justices Abrahamson and Bradley dissent, concluding Taylor was entitled to an evidentiary hearing because the record, far from being clear, shows potential confusion about the maximum penalty and criticizing the majority for confusing the law governing plea withdrawal. (¶¶88-128).

Our post on the potential implications of the decision is here.