First Circuit Expands Grounds for Compassionate Release
In United States v. Ruvalcaba, No. 21-1064 (1st Cir. Feb. 15, 2022), the First Circuit held (1) that a district court is not bound by the Sentencing Commission’s current policy statement when adjudicating a defendant-initiated motion for compassionate release and (2) that a district court may consider the First Step Act’s non-retroactive sentencing provisions on an individualized basis to determine whether an extraordinary and compelling reason exists for compassionate release. The First Circuit is the latest court to weigh in on a deepening circuit split that may soon come before the Supreme Court.
The First Step Act enacted in 2018 made several important changes to federal sentencing, two of which are relevant here. See FSA, Pub. L. No. 115-391, 132 Stat. 5194. Previously, only the Director of the Bureau of Prisons could file a motion for compassionate release. See 18 U.S.C. § 3582(c)(1)(A) (2012). The FSA allowed defendants to also file such motions on their own if the BOP declined to act. See FSA, § 603(b), 132 Stat. at 5239. Second, the FSA reduced the mandatory penalty for drug offenses under 21 U.S.C. § 841(b)(1)(A) for defendants with prior qualifying convictions. The minimum penalty for a conviction after two prior qualifying convictions was reduced from life to twenty-five years of incarceration. See FSA § 401(a)(2), 132 Stat. at 5220. The mandatory minimum for defendants with only one qualifying prior conviction was reduced from twenty to fifteen years of incarceration. See id. And the FSA modified the criteria for a qualifying prior offense from a “felony drug offense” to a “serious drug felony” or “serious violent felony.” See FSA, § 401(a)(1), 132 Stat. at 5220. The changes to the mandatory minimums under Section 401 applied only to defendants who were not yet sentenced when the FSA was enacted.
José Ruvalcaba was convicted of a conspiracy to distribute and to possess with intent to distribute over 500 grams of methamphetamine and a conspiracy to launder money in violation of 18 U.S.C. § 1956(h) and 21 U.S.C. § 846. When he was sentenced in 2009, Mr. Ruvalcaba had two prior felony drug offenses and faced a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A) (2006). The district court sentenced him to life imprisonment on the drug conspiracy and a concurrent 240 term of imprisonment on the money laundering conspiracy. The judgment was affirmed on direct appeal.
Mr. Ruvalcaba initiated a motion for compassionate release. Under the new criteria for a qualifying prior offense, Mr. Ruvalcaba would have faced a mandatory minimum of fifteen years if he had been sentenced under the FSA, rather than the mandatory life sentence that applied at the time of sentencing. Mr. Ruvalcaba argued that the resulting sentencing disparity was extraordinary and compelling, especially given that he was only 45 years old and had been incarcerated for 14 years on the drug conspiracy sentence. He also argues that he suffers from medical issues that rendered him uniquely susceptible to severe illness or death should he contract COVID-19.
The district court determined that Mr. Ruvalcaba had exhausted his administrative remedies. But the district court rejected Mr. Ruvalcaba’s medical conditions argument, finding that the BOP could adequately manage his medical issues. And the district court found that changes to the FSA’s sentencing regime could not be considered an extraordinary and compelling reason for compassionate release because Congress had not made those changes retroactive. The district court also considered the Sentencing Commissions current policy statement “helpful guidance.” On appeal, the First Circuit vacated the district court’s order and remanded.
The compassionate release statute requires that any sentencing reduction be “consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). The Commission issued a policy statement describing what qualifies as an extraordinary and compelling reason for a sentencing reduction in 2006, and later gave some examples in the commentary. See U.S.S.G. § 1B1.13 (2006) and § 1B1.13 cmt. n.1 (A)-(D). The policy statement includes four categories of extraordinary and compelling reasons: medical conditions, age, family circumstances, and other reasons deemed appropriate by the BOP. See id. at § 1B1.13 cmt. n.1 (A)-(D). That policy statement is still in effect.
The First Circuit joined most circuits to have considered the issue in holding that the current policy statement is not binding on district courts when deciding a compassionate release motion initiated by a defendant.[1] The Court reasoned that the text of the policy statements applies only when the BOP begins a request for relief. Additionally, the Sentencing Commission has not had a quorum for most of the time since the FSA’s enactment. The Commission therefore has had no opportunity to update the policy statement in light of the paradigm shift Congress intended to create when it passed the FSA.
The First Circuit also joined the Fourth and Tenth Circuits in holding that the disparity between the pre- and post-FSA mandatory minimums may constitute an extraordinary and compelling reason in individualized cases.[2] In doing so, the First Circuit disagreed with decisions by the Third, Seventh, and Eighth Circuits, which concluded that a district court lacks the discretion to consider the FSA’s non-retroactive changes in sentencing law in determining whether extraordinary and compelling reasons exist.[3] Two of those circuits, the Third and the Seventh, would allow consideration of that disparity, but only later when the district court weighs the 18 U.S.C. § 3553(a) factors. The First Circuit reasoned that the only consideration Congress has expressly excluded from what constitutes an extraordinary and compelling reason is rehabilitation. See 28 U.S.C. § 994(t). The court emphasized that a sentencing disparity does not qualify as an extraordinary and compelling reason in a typical case, but nothing prevents a district court from considering that disparity in a grievous individual case.
Although not directly on point, the Supreme Court subsequently issued an opinion that strongly suggests the First Circuit’s view that non-retroactive sentencing changes may constitute an extraordinary and compelling reason for compassionate release will prevail. In Concepcion v. United States, Supreme Court Docket No. 20-1650 (decided June 27, 2022), the Court noted that district courts have the discretion to consider “any relevant materials at an initial sentencing or in modifying that sentence” except as limited by statute or the Constitution. See Concepcion, slip op. at 9-10. That language suggests that district courts enjoy the same discretion in the context of compassionate release decisions.
As the First Circuit recognized, the window of time without an applicable policy statement may be closing. President Biden recently announced a slate of nominees to the Commission that, if confirmed, would constitute a quorum. Once the Sentencing Commission updates the policy statement, that policy will be binding on district courts. But even when there is an updated policy statement, district courts will remain free to consider whether the FSA’s sentencing reductions constitute an extraordinary and compelling reason to grant relief in individualized cases.
[1] See United States v. Andrews, 12 F.4th 255, 259 (3d Cir. 2021); United States v. Long, 997 F.3d 342, 359 (D.C. Cir. 2021); United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021); United States v. Shkambi, 993 F.3d 388, 388 (5th Cir. 2021); United States v. McGee, 992 F.3d 1035, 1050 (10th Cir. 2021); United States v. McCoy, 981 F.3d 271, 282 (4th Cir. 2020); United States v. Jones, 980 F.3d 1098, 1101 (6th Cir. 2020); United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020); United States v. Brooker, 976 F.3d 228, 230 (2d Cir. 2020). The Eleventh Circuit disagrees, holding that the current policy statement does apply to defendant-initiated motions. See United States v. Bryant, 996 F.3d 1243, 1247 (11th Cit. 2021). The Supreme Court denied certiorari on the issue during the last term. See 142 S. Ct. 583 (2021).
[2] See McGee, 992 F.3d at 1045-48; McCoy, 981 F.3d at 285-87.
[3] See United States v. Crandall, 25 F.4th 582, 585-86 (8th Cir. 2022); United States v. Andrews, 12 F.4th at 261-62; United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021). There is an intra-circuit split on the issue in the Sixth Circuit. See United States v. McCall, 20 F.4th 1108, 1114 (6th Cir. 2021).
SJC Declines to Adopt Bright Line Rule That There is No Reasonable Expectation of Privacy in Social Media Posts
In Commonwealth v. Carrasquillo, No. SJC-13122 (Feb. 7, 202), the Supreme Judicial Court affirmed the denial of a defendant’s motion to suppress social media content he unknowingly shared with an undercover police officer. The SJC found that on these facts Averyk Carrasquillo did not have a reasonable expectation of privacy in his Snapchat stories. Yet the Court disagreed with most courts to have considered the issue that third-party dissemination of content on social media necessarily removes any reasonable expectation of privacy in that information.
A Boston police officer sent a friend request to a Shapchat account bearing the username “Frio Fresh.” Frio Fresh accepted that request. The Frio Fresh account was set to private, meaning any stories posted to the account were visible only to users connected as friends with that account. Mr. Carrasquillo later acknowledged that Frio Fresh was his Snapchat username.
Police officer Joseph Connolly used a random username and a default profile picture on his undercover account. Office Connolly was familiar with Mr. Carrasquillo and knew he had a criminal history and was prohibited from carrying a firearm. Officer Connolly saw a story posted to the Frio Fresh account depicting an individual in distinctive clothing displaying a revolver. About thirty minutes later he saw another story showing Mr. Carrasquillo inside a gym. Police conducted surveillance of the gym and found Mr. Carrasquillo wearing the same distinctive clothing. Police recovered a revolver from Mr. Carrasquillo’s pants pocket.
The Superior Court denied Mr. Carrasquillo’s motion to suppress the video recordings from the Frio Fresh account. The trial court found that Mr. Carrasquillo had not shown that he had a subjective expectation of privacy in the video recordings and, even if he had, that such an expectation would not have been reasonable. Mr. Carrasquillo entered a conditional plea to possession of a firearm without a license, as a subsequent offender, and carrying a loaded firearm without a license. The SJC affirmed.
First, the Court found that Mr. Carrasquillo did not have a subjective expectation of privacy in his Snapchat account. In doing so, the SJC accepted the trial court’s finding that Mr. Carrasquillo was unaware of the privacy settings on his account. Additionally, Mr. Carrasquillo testified that he only accepted friend requests from people he knew. But that testimony conflicted with Officer Connolly’s testimony that he had sent a friend request with a randomly generated username, which Mr. Carrasquillo then accepted. The SJC distinguished this case from United States v. Chavez, 423 F. Supp. 3d 194, 203-05 (W.D.N.Y. 2019), in which the United States District Court for the Western District of North Carolina found there was a reasonable expectation of privacy in a social media account when the defendant knew that his account was private and took care to limit the public’s access to that account.
Next, the SJC found that here Mr. Carrasquillo did not have an objective expectation of privacy in his Snapchat stories. The Court did find that he had implemented some protective measures. Mr. Carrasquillo was using a pseudonym, friends had to be added deliberately to the account, and Snapchat stories are ephemeral because they are automatically deleted after one day. Thus, Snapchat stories are unlike text messages, in which the sender enjoys no reasonable expectation of privacy that would prevent police recovery of those messages from the recipient’s phone. See Commonwealth v. Delgado-Rivera, 487 Mass. 551, 560, 564 (2021). Compared to text messages, a Snapchat user maintains more control over his posts and Snapchat content is not as easily disbursable by recipients. The SJC therefore declined to adopt the majority view that the third-party doctrine removes any reasonable expectation of privacy in social media posts.
But Mr. Carrasquillo’s protective measures were not enough to give him a reasonable expectation of privacy in his Snapchat posts. Even though he employed some protective measures, he did not adequately control access to the account. In particular, the SJC focused on Mr. Carrasquillo’s decision to accept a friend request from an unknown account, which turned out to be controlled by police.
Finally, the nature of the government intrusion also weighed against a finding that Mr. Carrasquillo had a reasonable expectation of privacy in the videos at issue. The SJC emphasized that the government’s intrusion took place with Mr. Carrasquillo’s permission. Unlike metadata – which is often collected without the user’s involvement or even knowledge – the videos collected by Officer Connolly were the precise content Mr. Carrasquillo posted for his Snapchat friends to see.
Carrasquillo will embolden law enforcement to increase its surveillance of targeted communities through anonymous social media accounts. That tactic is troubling in an era when people increasingly rely on social media for social and political discourse. But there is a glimmer of hope that individuals in Massachusetts can shield their social media communications from government intrusion provided they are diligent about adopting available privacy protections.
First Circuit Overrules Actual-Fear Test for Warrantless Protective Searches
In United States v. Guerrero, No. 21-1244 (1st Cir. Dec. 6, 2021), the First Circuit held that the actual-fear test described in United States v. Lott, 870 F.2d 778, 783-84 (1st Cir. 1989) is no longer controlling given subsequent Supreme Court decisions. That is to say, a warrantless protective weapons search of suspects in vehicles and the area within their grab space is permissible under the Fourth Amendment if it is objectively reasonable, even where the police officers conducting the search do not actually fear for their safety.
A bit of background is in order. Police officers may stop a person where the officers have reasonable suspicion of imminent criminal conduct and also may frisk him based on reasonable suspicion that he is armed and dangerous. See Terry v. Ohio, 392 U.S. 1 (1968). Courts judge Terry stops based on an objective standard; a stop and frisk is permitted where a reasonably prudent person in the circumstances would fear danger to herself or others. The Supreme Court later extended Terry stops to also allow police officers to conduct a protective car frisk where they reasonably fear that a suspect could immediately access weapon. See Michigan v. Long, 463 U.S. 1032 (1983). In 1989, the First Circuit found that a police officer cannot have a reasonable suspicion that a person is armed and dangerous if she does not actually fear that a weapon is present. See United States v. Lott, 870 F.2d 778 (1st Cir. 1989). The First Circuit therefore required that protective car searches pass both an objective test and a subjective actual-fear test.
Police in Providence, Rhode Island responded to a shots fired call from a laundromat in October 2019. Officers began following a vehicle seen racing from the scene and signaled for the driver to pull over. The driver did not initially comply, instead making several quick turns. The vehicle eventually stopped and officers approached with guns drawn and ordered the driver and passenger to get out. The passenger did so but the driver – Mr. Guerrero – did not comply until he was told several times to get on the ground. A search of the vehicle turned up a magazine loaded with bullets.
Mr. Guerrero was charged with unlawful possession of ammunition under 18 U.S.C. § 922(g)(1). He moved to suppress the bullets seized in the search of the vehicle. The trial judge granted the motion, finding that the government had met Lott’s objective prong but had failed to show that officers actually feared Mr. Guerrero posed a danger.
On reconsideration and on appeal, the government argued that Lott’s actual-fear test was no longer good law considering two subsequent Supreme Court cases. First, in Maryland v. Buie the Supreme Court held that officers conducting an in-home arrest with a warrant could conduct a warrantless protective sweep when a reasonably prudent officer would be justified in believing that the dangerous third party lurked in the area to be swept. See 494 U.S. 325 (1990). Later, the Supreme Court noted in Whren v. United States that – with few exceptions – a police officer’s motive does not invalidate an objectively valid stop or search. See 517 U.S. 806 (1996).
Reviewing de novo, the First Circuit agreed with the government and abrogated the Lott actual-fear test. In doing so, the Court emphasized that reasonableness under the Fourth Amendment is nearly always measured by an objective test. An objective inquiry recognizes that the Fourth Amendment regulates conduct rather than thoughts and promotes uniform enforcement of the law.
Guerrero is a rare example in which a First Circuit panel overturned a previous panel decision. It did so under the second exception to the “law of the circuit” rule, which ordinarily requires panels to follow the holdings of previous panel decisions. That doctrine does not apply when either (1) a directly on point Supreme Court decision, en banc First Circuit decision, or a statutory enactment overrule the previous panel decision or (2) subsequent Supreme Court cases, although not directly controlling, provide a clear and convincing basis to believe the earlier panel would have made a different decision. After Buie and Whren, the Guerrero panel concluded that Lott would have come out a different way.
Lott allows police to conduct a protective car frisk even where officers do not actually fear that a suspect will access a weapon.This is the latest in a line of decisions allowing police to conduct pretextual searches and seizures and thereby narrowing Fourth Amendment protections.
SJC Issues Guidance for Virtual Trials
In Commonwealth v. Curran, No. SJC-13093 (Dec. 30, 2021), the Supreme Judicial Court affirmed the defendant’s conviction after a virtual bench trial despite constitutional concerns raised on appeal. The decision was the latest to find that virtual hearings in criminal cases are not a per se constitutional violation, at least when the defendant consents. The court took the opportunity to issue guidelines governing the conduct of virtual trials going forward.
The SJC has previously allowed pretrial hearings to proceed over Zoom. In Commonwealth v. Vazquez Diaz, the SJC held that a suppression hearing held over Zoom is not a per se violation of a defendant’s constitutional rights during the COVID-19 pandemic. In Curran the SJC extends that holding to bench trials in criminal cases.
Martin Curran was charged with one count of assault and battery on a family member and one count of strangulation or suffocation. See G.L. c. 265, §§ 13M(a), 15D(b). He was held without bail after a dangerousness hearing under G.L. c. 276, § 58A. Curran waived his right to a trial by jury. He was tried over Zoom, with everyone present in the courtroom except Curran and one witness. The court found Curran guilty of simple assault and battery and dismissed the strangulation or suffocation count as well as the portion of the assault and battery count alleging the victim was a member of the defendant’s household or family.
On appeal, the defendant argued that a virtual bench trial violated his constitutional rights to confront the witnesses against him, to be present at trial, to have a public trial, and to the effective assistance of counsel. Because Curran made these arguments for the first time on appeal the court reviewed for a substantial risk of a miscarriage of justice. The standard of review proved to be fatal to Curran’s challenge where he did not argue that he was prejudiced by the virtual trial.[1] That said, the court’s analysis suggests that virtual trials will pass constitutional muster when the defendant consents.
The confrontation right under the Sixth Amendment and Article 12 includes both the right to question witnesses and the right to see and be seen by those witnesses face-to-face. The SJC found that there is no absolute right to in-person confrontation, although the court recognized that physical confrontation is important. Because Curran did not argue that virtual confrontation materially influenced the verdict, the court found no substantial risk of a miscarriage of justice in this case.
Defendants have a constitutional right to be present for all critical stages of court proceedings under the confrontation and due process clauses of the Sixth and Fourteenth Amendments and Article 12. See also Mass. R. Crim. P. 18(a). The SJC rejected Curran’s argument that a virtual hearing is necessarily inconsistent with the right to be present. The court found that the Zoom setup here was sufficient. The defendant could speak with his attorney in a private setting, the defendant could see his attorney, the judge, and the witnesses on a computer monitor, and the trial court periodically ensured that the technology was working correctly.
Curran also argued that a virtual trial violated his Sixth Amendment right to a public trial because the public could not attend in person. The SJC found that the public was not excluded where the district court allowed counsel to disseminate to the public a link to view the trial and where Curran did not argue that he was prejudiced by any purported exclusion of the public.
Finally, the SJC rejected Curran’s argument that he was denied the effective assistance of counsel because he could not discuss trial with his attorney when they were in different locations. The court found that Curran could have asked his attorney to move to the private Zoom breakout room offered by the court for privileged conversations and that Curran did not identify any error that might have been mitigated by being physically next to his attorney.
The court took the opportunity to issue guidance under G.L. c. 211, § 3 to be used in virtual bench trials in criminal cases going forward. The SCJ advised:
Prior to the commencement of such a trial, the judge shall obtain a defendant's assent to a virtual bench trial on the record. In so doing, the judge shall satisfy him- or herself that the defendant understands that he or she has the option of appearing in person. In addition, the judge shall explain to the defendant the procedure to be followed during the trial, including how to communicate with counsel, and the arrangements made for witness testimony and the public's access to the proceedings. Finally, the judge shall ensure that the defendant has had an opportunity to discuss the decision to proceed with a virtual bench trial with trial counsel.
Although the SJC affirmed Curran’s conviction in this case, the court also recognized that constitutional rights are implicated when court hearings are held remotely. Defendants in future cases should continue to preserve objections to virtual hearings where appropriate.
[1] That result differs from Vazquez Diaz, when the defendant sought a continuance of the suppression hearing and waived his speedy trial rights. Although the court did not find that the virtual hearing in Vazquez Diaz was a per se constitutional violation, it did find the trial court abused its discretion when it denied the defendant’s motion to continue the hearing and waived his speedy trial rights.
First Circuit Holds District Court Lacked Jurisdiction to Amend Restitution Order
In United States v. Harvey, No. 20-1869 (1st Cir. Dec. 9, 2021), the First Circuit held that the district court lacked jurisdiction to modify a restitution order once it was entered as part of a final criminal judgment. Harvey will create challenges for the government when a victim corporation ceases business operations.
Stephen Harvey embezzled over $600,000 from Sleep HealthCenters while serving as that company’s CFO. In 2011 Harvey pled guilty to an information charging him with mail fraud and interstate transportation of stolen property. The district court sentenced him to 24 months’ imprisonment, 3 years of supervised release, and ordered him to pay restitution to SHC’s then-President and CEO in the amount of $635,060.70.
SHC ceased business operations in early 2013. KCP Advisory Group was appointed as receiver to oversee the sale of SHC’s assets. KCP was discharged from its obligations in 2016 after SHC was officially dissolved as a corporate entity.
Although the district court had imposed a below-guidelines sentence to facilitate prompt payment of restitution to his victim, Harvey ultimately paid less than $9,000. The government sought a writ of garnishment in 2019 to collect the rest of the restitution obligation. Harvey moved to quash because his corporate victim was no longer in business and had no successor-in-interest. The district court denied the motion to quash and allowed the government’s motion for an order of continuing garnishment. The district court found that it had authority under Federal Rule of Criminal Procedure 36 to amend the judgment as to the payee of the restitution order. Thus, the court directed the government to confer with KCP to seek reinstatement as receiver. After KCP was reinstated the trial court ordered that Harvey’s outstanding restitution payments were to be directed to KCP. The court ultimately entered an amended judgment under Rule 36 substituting KCP as the restitution payee.
On appeal Harvey argued for the first time that the district court lacked jurisdiction to enter the amended judgment. The First Circuit agreed. Criminal convictions and sentences are subject to a general rule of finality under 18 U.S.C. § 3582. A parallel rule of finality applies to restitution orders under 18 U.S.C. § 3664(o). A district court therefore lacks the authority amend a final criminal judgment subject to narrow exceptions provided by statute.
The district court retains the power to correct certain errors in a previously imposed sentence under Federal Rules of Criminal Procedure 35 and 36. Those rules are strictly construed, however, and neither provided a basis to correct the judgment against Harvey. Rule 35 authorizes certain corrections of clear errors in a sentence, but only within 14 days after sentencing. The amended judgment here was entered years after Harvey’s sentencing. And the court found that substituting KCP was not a mechanical or technical correction of a “clerical error” under Rule 36.
Nor did any statute authorize the district court to substitute KCP as the restitution payee in this case. The government argued that 18 U.S.C. § 3663A(a)(2) authorized KCP to assume the restitution rights of SHC. Under that provision a victim’s estate, family member, “or any other person appointed as suitable by the court” may assume a deceased, incompetent, or incapacitated victim’s restitution rights. See id. As a matter of first impression, the First Circuit held that Section 3663A(a)(2) permits assumption of a victim’s restitution rights only where the victim was a natural person. That provision does not authorize assumption of a corporation’s restitution rights.
Judge Selya wrote a separate concurrence to clarify that Harvey need not be released from his restitution obligations. KCP as SHC’s receiver could file a separate civil suit in which Harvey would be unable to contest his liability. Judge Selya also noted that there may be cases when it would be appropriate for restitution payments to be collected by an entity that is deemed by operation of law to be the same corporation as the corporate victim. Finally, the concurrence notes that the problem here could be avoided if district courts specify that a restitution order runs to the benefit of a corporation as well as its successors and assigns.
The government often has broad authority to enforce restitution, forfeiture, and other financial penalties imposed as part of a criminal sentence. Harvey shows that there may be avenues to challenge that authority where the government lacks express authorization under an applicable statute or rule.
SJC Allows Pat Frisk Based on Conduct of Different Passenger
In Commonwealth v. Sweeting-Bailey, No. SJC-13086 (Dec. 22, 2021), a sharply divided Supreme Judicial Court affirmed the denial of a defendant’s motion to suppress the fruits of a pat frisk conducted after a fellow passenger challenged officers during a routine traffic stop. Dissenters argued that the decision will worsen the racially disparate impacts of automobile stops on persons of color that the court recognized in Commonwealth v. Long, 485 Mass. 711 (2020).
To begin with, the SJC has increasingly recognized the racially discriminatory impact of facially neutral criminal laws on persons of color. In Commonwealth v. Long, the SJC held that a defendant seeking to suppress evidence based on the claim that a traffic stop violated equal protection bears the burden of establishing a reasonable inference that the stop was motivated by race or another protected class. Id. at 713. If the defendant identifies specific facts from the totality of the circumstances warranting a reasonable inference that the stop was racially motivated, the burden then shifts to the Commonwealth to rebut that inference. Id. In doing so the SJC explicitly recognized that racially disparate enforcement of traffic laws has caused great harm in communities of color. See id. at 716-18; see also Commonwealth v. Evelyn, 485 Mass. 691, 700 (2020) (noting “African-Americans continue to be targeted disproportionately” for stops, frisks, and searches by Boston police).
During a routine traffic stop the front seat passenger, Raekwan Paris, got out of the vehicle and angrily confronted police officers about the reason for the stop. The officers knew Paris to be cooperative and polite during previous police encounters. Officers also knew Paris had a pending firearm charge. Paris refused to get back in the car when ordered to do so and police described him as taking “a bladed stance” and that he had “a closed clenched fist.” See slip op. at 5. After Paris was handcuffed and pat frisked, police ordered the remaining occupants of the car to exit and conducted a pat frisk of all three. The three occupants were also known to police. One occupant had posted a photo of a firearm to social media with the month before. Bailey-Sweeting had a three-year-old juvenile adjudication for a firearm offense. Police believed that three of the men, including Bailey-Sweeting, were linked to various gangs.
Bailey-Sweeting (who is misidentified in the indictment as Sweeting-Bailey) entered a conditional guilty plea to charges of possession of a firearm without a license and possession of a large capacity feeding device. On appeal the SJC affirmed the Superior Court's order denying the defendant’s motion to suppress.
The court found that “the officers had reasonable suspicion, based on specific, articulable facts, that the defendant might have been armed and dangerous.” See id. at 3. Those facts included Paris’s uncharacteristic behavior during the traffic stop, which officers interpreted as an effort to divert attention away from the contents of the vehicle, that three passengers had previous firearms involvement and gang affiliations, and that the stop occurred in a high crime area. Although the court conceded that each of these factors on their own would be insufficient to justify the pat frisk of Bailey-Sweeting, the court found that the totality of the circumstances justified the frisk.
Justices Lowy and Wendlandt concurred. Justice Lowy emphasized that concerns about the effect of traffic stops on persons of color are serious, but concluded on the facts here that it was reasonable for police to infer that Paris was attempting to divert attention from the car. Justice Wendlandt wrote separately to emphasize that Bailey- Sweeting did not challenge the traffic stop or exit order and that, in his view, the court’s decision did not rest on racial stereotypes or contribute to systemic racism.
Chief Justice Budd wrote a powerful dissent arguing that a pat frisk of all the car’s occupants after one – a Black man – accused police of harassment violated Bailey- Sweeting’s right to be free from unreasonable search and seizure under Article 14 of the Massachusetts Declaration of Rights and the Fourth Amendment of the United States Constitution. Police identified no training or experience that would support the reasonableness of inferring from Paris’s behavior that there was a weapon in the vehicle. To the contrary, Paris had been polite during a previous encounter when he was found to be in possession of a firearm. As a matter of common sense the most straightforward explanation of Paris’s conduct is that, as he said then, he was frustrated because he believed the police were harassing him. The occupants’ history of firearms possession and gang affiliation and the location of the stop were also insufficient to support an inference that Paris was trying to distract police from a weapon inside the vehicle. The Chief Justice concluded that uncritical deference to officers’ stated suspicions “provides the space into which seeps the damaging influence of racial bias.” See slip op. at 17 (Budd, C.J., dissenting).
Justice Gaziano also dissented, arguing that the court’s decision was based on subjective, speculative beliefs rather than the standard of a reasonable police officer. He further disagreed with the court that Paris’s actions could support reasonable suspicion that Bailey-Sweeting was armed and dangerous with no indicia that they were acting jointly.
The effect of Sweeting-Bailey may be limited considering the court’s concession that the case is close and the reasonable suspicion analysis fact specific. But the case illustrates the barriers defendants face in challenging officer’s use of facially neutral factors that disproportionately impact overpoliced communities.
First Circuit Affirms Rare Defense Win on Ineffective Assistance Claim
In United States v. Baptiste, No. 20-1400 (1st Cir. Aug. 9, 2021), the First Circuit affirmed a trial court’s unusual decision finding the deficient performance of counsel for one defendant warranted a new trial for two alleged co-conspirators.
The government accused Roger Boncy and Joseph Baptiste of conspiring to bribe Haitian officials to secure approval of a port project. After a joint trial the jury found both guilty of conspiracy to violate the Foreign Corrupt Practices Act and the Travel Act. The jury also convicted Baptiste of violating the Travel Act and for conspiracy to commit money laundering. The jury acquitted Boncy of the latter counts.
Baptiste’s new counsel moved for a new trial under Federal Rule of Criminal Procedure 33, arguing that trial counsel’s performance was ineffective. Boncy sought the same relief because the deficient performance of Baptiste’s lawyer impaired Boncy’s Fifth Amendment due process right to a fair proceeding. The district court granted both motions after an evidentiary hearing. The court found that Baptiste was prejudiced by the deficient performance of his trial attorney. Likewise, the court found that Baptiste’s attorney’s performance also prejudiced Boncy when his attorney was forced to play an outsized role at trial.
The First Circuit affirmed. To begin with, the government did not dispute that Baptiste’s trial attorney’s performance was deficient. As the district court found, counsel did not review (or even open) all of the discovery produced by the government, did not get English translations of recordings even after learning that the government’s translations may contain errors, cross-examined only two of the government’s six witnesses and even then elicited damaging testimony from those witnesses, deferred to Boncy’s counsel to cross-examine the remaining witnesses although Boncy’s trial strategy was to portray Baptiste as the primary driver of any conspiracy, and pursued an entrapment defense that put his client at the center of the conspiracy, among other problems.
The government argued that Baptiste’s conviction should stand because the evidence of his guilt was overwhelming. In rejecting that argument the First Circuit emphasized that the focus of the prejudice inquiry is on the fundamental fairness of the proceeding. The right to effective counsel is not limited to cases of actual innocence although the strength of the government’s case is a factor in the prejudice analysis. The court also highlighted a problem with evaluating the strength of the evidence in ineffective assistance cases; that is, the evidence may look strong only because it went unchallenged as a result of counsel’s deficient performance.
The First Circuit also disagreed with the government’s contention that Baptiste benefited from Boncy’s counsel, who took the lead on cross-examination. The flaw with the government’s argument is that Boncy’s trial strategy was to blame Baptiste. Boncy’s trial counsel accordingly elicited testimony harmful to Baptiste and was no substitute for Baptiste’s own attorney.
Finally the First Circuit declined to adopt the government’s interpretation of the cumulative-error doctrine. The government had asked that the court curb that doctrine where each individual deficiency did not require a new trial. The court confirmed that the cumulative-error doctrine applies more broadly to cases in which combined errors led to an unfair trial even where each error considered individually would not justify relief.
The First Circuit also found that the district court acted within its discretion when it granted Boncy a new trial. The First Circuit recognized that a trial court has broad powers to grant a new trial under Rule 33 if the court for any reason concludes that there has been a miscarriage of justice. Here, the district court found that Boncy was denied his Fifth Amendment due process right to a fair trial when his attorney was forced to play an outsized role at trial rather than his preferred approach of taking a minor role to emphasize his client’s minor role in the alleged conspiracy.
Baptiste illustrates an unusual path for an ineffective assistance claim. Typically such claims require additional evidence and are litigated after a defendant’s direct appeal. Here, counsel secured the necessary evidence at a post-trial evidentiary hearing. That strategy had at least two benefits for these defendants. First, defendants promptly secured a favorable ruling without the delays associated with waiting until after the direct appeal. Second, defendants benefitted from the trial court’s more comprehensive powers under Rule 33 to grant a new trial if for any reason the district court finds that there has been a miscarriage of justice. A Rule 33 motion may succeed even where the district court does not believe there was reversible error. Had defendants pursued their claims on collateral review, their habeas petition would have succeeded only if they could show that there had been a denial of a constitutional right. Both Baptiste and Boncy made constitutional arguments here and may have succeeded on a habeas petition, but defense counsel should always consider whether a Rule 33 motion is a preferable alternative.