Sixth Circuit Says For Sentencing Purposes “Relevant Conduct” Must Be Criminal Conduct

The Sixth Circuit issued a ruling recently in U.S. v. Ernest Catchings. The Court held that for an act to be viewed as “relevant conduct” for calculating federal sentencing guidelines, the act must have been an offense that could have resulted in incarceration for the defendant.

The case came about after Ernest Catchings was arrested and charged with using his former clients’ personal information to obtain credit cards in their names. Catchings pleaded guilty to identity theft and it then became necessary to calculate the total amount of loss Catchings’ actions resulted in. The district court, while calculating the figure, included in its total money lost as the result of credit cards that were in the name of a company Catchings started with a friend. These losses worked to push Catchings into a higher loss bracket. Catchings claims that these cards were not obtained by fraudulent means and therefore the losses should never have been included in his guidelines range.

The matter of the business cards was a complicated one given that Catchings’ former business partner admitted they had opened the credit account together, for the business. However, he said the cards were not to be used for personal expenses. The prosecutor revealed that money had been charged to the cards, but never clearly showed that the charges were personal and not business related. Though the charges may have been unfortunate, there was no proof that they were illegal.

The Sixth Circuit ultimately agreed with Catchings. The Court said that in order for conduct to be relevant for loss calculation, it must also be criminal conduct. The Court felt that Catchings likely took advantage of his former friend and business partner, but that it is not clear based on the evidence presented during sentencing that his conduct was criminal.

Catchings also appealed on a second issue, claiming that his guilty plea was not entered into knowingly or voluntarily and that the lower court made a mistake when it denied his motion to withdraw his guilty plea. The Sixth Circuit disagreed with Catchings in this case. The Court held that following an analysis of the seven factors judges must consider when hearing a motion to withdraw a guilty plea, laid out in U.S. v. Bashara, Catching’s motion was properly denied. The only possible claim Catchings had was one of ineffective assistance of counsel, however, he destroyed that as a basis after it was revealed he reinstated his counsel after first making his claim of incompetence.

The different outcomes on the two appealed issues means that the conviction was affirmed as was the lower court’s denial of his motion to withdraw his guilty plea. However, Catchings’ sentence was vacated and remanded for resentencing in accordance with a new loss calculation.

To read the full opinion, click here. 

Supreme Court Holds Officers Immune from Civil Suit on Invalid Search

• MESSERSCHMIDT ET AL. v. MILLENDER, EXECUTOR OF ESTATE OF MILLENDER, DECEASED, ET AL.

In an important and sure to be controversial decision yesterday, the Supreme Court held that police officers maintain their qualified immunity, even when a search is invalid, so long as their actions are not objectively unreasonable. (full opinion here)

This California case involved the search of a grandmother's home for proof of a weapon alleged to be possessed by Bowen, her grandson, a reputed gang member.  A federal district court found that the police search was unreasonable and the warrant invalid.  A civil suit was brought against the officers in federal court that sought money damages for the alleged constitutional violations.  In ending the matter, the Supreme Court found that the officers were and are protected from civil suit under the doctrine of qualified immunity.

Writing for a six-justice majority in Messerschmidt v. Millender, Chief Justice John Roberts Jr. rejected the suit against the officers, holding that such legal actions can be brought only if the police acted unreasonably. Chief Justice Roberts concluded that the police’s reliance on the warrant entitled them to qualified immunity because that reliance was not “objectively unreasonable.” The NYT reports.

The Court held: Qualified immunity “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ Where the alleged Fourth Amendment violation involves a search or pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner, or in “objective good faith. Nonetheless, that fact does not end the inquiry into objective reasonableness. The Court has recognized an exception allowing suit when “it is obvious that no reasonably competent officer would have concluded that a warrant should issue.”

The “shield of immunity” otherwise conferred by the warrant, will be lost, for example, where the warrant was “based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. The threshold for establishing this exception is high. “[I]n the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination” because “[i]t is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment.”

The Court further stated: This case does not fall within that narrow exception. It would not be entirely unreasonable for an officer to believe that there was probable cause to search for all firearms and firearm-related materials. Under the circumstances set forth in the warrant, an officer could reasonably conclude that there was a “fair probability” that the sawed-off shotgun was not the only firearm Bowen owned, and that Bowen’s sawed-off shotgun was illegal. Given Bowen’s possession of one illegal gun, his gang membership, willingness to use the gun to kill someone, and concern about the police, it would not be unreasonable for an officer to conclude that Bowen owned other illegal guns.

An officer also could reasonably believe that seizure of firearms was necessary to prevent further assaults on Kelly. California law allows a magistrate to issue a search warrant for items “in the possession of any person with the intent to use them as a means of committing a public offense,” and the warrant application submitted by the officers specific referenced this provision as a basis for the search.

More than $1.5 million lost by Mayor Ron Littlefield and the City of Chattanooga in 2011 for wrongful termination of Police Officers

Todays' jury verdict of  $680,000 in favor of Chattanooga Police Officer Mickel Hoback is the second time this year that the city of Chattanooga has been ordered to pay out for wrongfully terminating their own officers.  In March of this year the city paid $840,000 to long time CPD Asst. Chiefs Skip Vaugh and Charles Cooke for their wrongful termination.  That totals $1,520,000.00 in awards for terminations approved by Mayor Ron Littlefield. These are not easy cases to prove and historically juries have been sympathetic to an executive's decision to make business decisions, even blatantly poor ones.  But these cases--both are jury verdicts in favor of the officers--show that jurors can and will act when they perceive manifest injustice toward officers employment.  Today's case won by attorneys Phil Lawrence and Mike Richardson was about the Americans with Disabilities Act (PST from serving with the Marines in Iraq) and previously Vaughn & Cooke's case involved proven claims of age discrimination by the Littlefield administration.

Here is information about the award in the Vaughn and Cooke case. Former Chattanooga Officers Receive $840,000. Lee Davis and Jonathan Guthrie represented Officers Vaughn and Cooke.

Chattanooga Police Officer Awarded $680,000 for Wrongful Termination by City

The Chattanoogan.com reports that a Federal Court jury on Thursday awarded $680,000 in damages to a former Chattanooga Police Officer who was terminated related to Post Traumatic Stress Disorder from his service in Iraq. The award against the city of Chattanooga was for Mickel Hoback. Here is more on the case.

Attorneys Phil Lawrence and Michael Richardson said he served well as a police officer from 2000 to his time in the service from June 2004 to December 2005. He then returned to the police force.

Then-Police Chief Freeman Cooper terminated him when he learned that he had been involuntarily committed to a Veterans Administration facility.

Testimony Begins in University of the South Federal Case

CHATTANOOGA, Tenn. (AP) — A former student at Sewanee: The University of the South testified Thursday that university leaders damaged his future when they wrongly decided that he raped a female student in his dorm room.

Identified in court only as John Doe, the former student at the private, Episcopal campus in southeastern Tennessee was never criminally charged. A university disciplinary panel in 2008 decided that he raped a female student who later told them she has prescriptions for mood-altering medications, had been drinking alcohol and was incapacitated when assaulted.

At the request of the former student's attorneys, U.S. District Judge Sandy Mattice is allowing him to conceal his identity as he asks a jury to force the university to pay him at least $1 million in damages. His testimony resumes Friday.

The former student contends the female student consented to having sex with him in his dorm room.

His suit contends the university harmed his reputation and career prospects by violating its own rules in the way it handled the accusation. Instead of a suspension, he accepted the university's other offer to remove the disciplinary finding in return for him leaving the university and reapplying a year later. He did not apply for readmission and said he realized that applications for officer candidate school, military intelligence clearance and law school would reveal the university's disciplinary action that he contends was mishandled.

"I've been wanting to be a Marine for a long time," he said in response to a question by his attorney.

An Eagle Scout and athlete, the former student said an application that he sent to Presbyterian College was sent back to him requesting an explanation of his departure from the university at Sewanee.

University administrators involved in the finding that the former student was responsible for violating the sexual assault policy testified that the process was handled properly and that they treated the former student fairly.

Eric Hartman, the university's dean of students, testified that the disciplinary process is different from a criminal case and is intended to "find the truth." He said there was no recording or transcript of the disciplinary panel's hearing. Hartman said there have been about 10 such disciplinary actions related to accusations of sexual assault at the university. About four ended with decisions that there was not enough evidence to hold the accused responsible. He said there has never previously been a lawsuit.

After testimony concluded and the nine jurors left the courtroom Thursday, the judge questioned attorneys about the value of having jurors hear expert witness testimony about the female student's ability to consent to having sex.

"This case is not about rape. It is about whether the (disciplinary) process was adequate or not," Mattice said. "We are never going to know what went on in that dorm room that night."

Records show the former student was an out-of-state freshman when the female student contends she was raped in his dorm room about 1 a.m. on Aug. 30, 2008. She left about 7 a.m., walked to an emergency phone and called university police. Records show that when officers arrived, she told them she had been raped and they took her to a hospital. Investigators prepared a report, but records show a case was never taken to a prosecutor.

Bill Poovey, Associated Press