6th Circuit Update

U.S. v. Hernandez, No. 17-5448, 2018 WL 443764 (2018)(to be published).

Facts. Hernandez was involved in large scale marijuana distribution. On at least 3 occasions, Hernandez arranged a location as delivery point for a 1,000 pound shipment of marijuana. Hernandez was paid $5,000 for his efforts. When the supplier fell behind on payments to Hernandez, the supplier offered Hernandez 2 kilograms of a 28 kilogram cocaine shipment. Hernandez accepted the deal, but the shipment never came through. After a conversation with supplier, Hernandez used the internet to check on the shipment. Hernandez learned from a subordinate that the DEA had seized the cocaine. Several months later, the DEA spoke to Hernandez about his drug involvement. Hernandez confessed and entered a guilty plea to conspiring to distribute 2 kilograms of cocaine. However, the judge at sentencing punished Hernandez for all 28 kilograms of cocaine because Hernandez expanded his role in the conspiracy.

Use of the internet can further a conspiracy. Hernandez argued for a lesser sentence because he claimed to have an interest in only 2 of the 28 kilograms. The 6^th Circuit disagreed. The Court acknowledged it is not illegal to use the internet. However, it is illegal to assist in the commission of a crime, to assist another in avoiding punishment, to try and conceal a felony, or to do any act in furtherance of a conspiracy, regardless of whether the person uses the internet. Using the internet in an attempt to discover what happened to a shipment of illegal drugs furthered the conspiracy. Therefore, the district judge did not err in holding Hernandez responsible for all 28 kilograms of cocaine.

U.S. v. Harris, 881 F.3d 945 (6^th Cir. 2018).

Facts. Harris was a stock broker. He participated in a scheme to recommend purchase of stock in a particular company in exchange for undisclosed commissions. A jury found Harris guilty of conspiracy to commit securities fraud, wire fraud, and obstruction of justice.

The difference between KRE 608 and KRE 613. While KRE 608 and KRE 613 differ somewhat from the FRE, this case is useful for explaining the difference between the two. Harris was convicted of obstruction of justice because a co-conspirator testified that Harris told the co-conspirator to tell the FBI “remember, we sold watches” as the explanation for where the money came from. Before the case went to trial, a defense investigator questioned the co-conspirator. The investigator asked the co-conspirator if Harris said “just tell the truth and leave it at that.” The co-conspirator responded that “it was more of the nature.” At trial, the judge refused to allow the Harris to impeach the coconspirator with his prior statement based on FRE 608, which involves challenging a witness’ character for truthfulness. The 6^th Circuit determined the trial judge erred by not applying FRE 613, which allows a witness to be impeached with a prior statement. The Court ruled the defense should have been allowed to impeach the witness. The error was not harmless because the co-conspirator’s testimony regarding obstruction was uncorroborated by other witnesses or evidence such as text messages. This case demonstrates the importance of consulting both rules when challenging a witness’ testimony.

Hearing required due to a juror’s use of social media during trial. Harris’ case was remanded for a hearing to determine whether a juror was prejudiced by an extraneous influence. During Harris’ trial, he received an email from LinkedIn that someone named Goleno had viewed his LinkedIn profile. The defense discovered evidence from Facebook that Goleno had a romantic relationship with a juror and that they lived together. The defense requested a hearing to determine whether the juror had been improperly exposed to prejudicial extraneous information. The defense argued that a Google search of Harris’ name revealed details of the investigation that had been excluded from his trial. The trial judge denied the motion. The 6^th Circuit reversed. In order to safeguard a criminal defendant’s right to a panel of impartial jurors under the Sixth Amendment, when a defendant presents a colorable claim of extraneous influence, the court has a duty to investigate and to determine whether there may have been a violation of the constitutional guarantee. 

Contributed by Sam Potter 

KYSC - Moore- PFO reversal

Arnold Moore v. Commonwealth; Kentucky Supreme Court; June 11, 2015; To Be Published. 

Following a guilty verdict on manufacturing methamphetamine and possession charges, the trial proceeded to the PFO phase. Arnold had a prior felony conviction that was entered 5 years and 7 months before the date of offense in this case. The prosecutor introduced that judgement but chose not to call any witnesses. 

The Supreme Court granted directed verdict on the PFO charge and reiterated the prosecution bears the affirmative burden to prove every element of PFO beyond a reasonable doubt. The prosecutor failed to meet this burden because no evidence, whether testimony or document, created a reasonable inference that Arnold was still incarcerated or on some form of supervised release with 5 years of this offense. 

The Court reversed his PFO 1^st conviction and 50 year sentence and remanded the case to impose the 15 year sentence for the underlying convictions, which reduced Arnold’s sentence by 35 years. Given the lackadaisical effort by the prosecutor that had a dramatic impact on the sentence, the Supreme Court took the opportunity to emphasize the serious nature of the PFO portion of the trial:

 “As illustrated by this case, the PFO phase of the trial is of substantial and potentially life-changing significance to all parties involved, and to the general public. Given the gravity of its consequences, we would presume that this phase of the trial would be handled with the utmost respect, not as a mere after-thought or postscript of the guilt phase. The somewhat haphazard presentation of PFO evidence that we occasionally see suggests a less than serious commitment to this vital aspect of criminal trial procedure.” 

Greg Griffith represented Arnold at trial, where he made an aggressive argument for directed verdict and followed it up with a substantive post-trial motion for acquittal. Sam Potter represented Arnold on appeal.

Contributed by Sam Potter