Week in Review

U.S. Supreme Court

Wooden v. United States. The case is about the meaning of "occasion" under the Armed Career Criminal Act. It may have some relevance when deciding Quiroz type questions.

The Courts of Appeals have divided over the meaning of ACCA’s “occasions” clause. Some Circuits, like the Sixth, deem the clause satisfied whenever crimes take place at different moments in time—that is, sequentially rather than simultaneously. Other Circuits undertake a more holistic inquiry, considering not merely the precise timing but also other circumstances of the crimes. We granted certiorari, 592 U. S. ___ (2021), to resolve that split of authority.

The government argued that ten burglaries happening sequentially are ten offenses. 

We think not. The ordinary meaning of the word “occasion”—essentially an episode or event—refutes the Government’s single-minded focus on whether a crime’s elements were established at a discrete moment in time. And ACCA’s history and purpose do so too: The origin of the “occasions” clause confirms that multiple crimes may occur on one occasion even if not at the same moment. Wooden’s night of crime is a perfect case in point. His one-after-another-after another burglary of ten units in a single storage facility occurred on one “occasion,” under a natural construction of that term and consistent with the reason it became part of ACCA. 

Justices Sotomayor, Kavanaugh, and Barrett with Thomas, and Gorsuch joined by Sotomayor wrote separately to concur and so reached a unanimous decision.

Volokh Conspiracy take.
Prof. Berman's take.

D.C. for the Eastern District of Virginia

United States v. Chatrie. (For those who enjoyed the presentation on AI and the law at the CAAF conference. We are still trying to figure out any legal implications in what we do with the computer in our hand or on the wrist.) The case deals with a motion to suppress results of a geofence warrant as a Fourth Amendment violation. Essentially, a warrant to Google produced location tracks of 19 people in the area of a bank robbery, and yes you guessed it, Chatrie was one of them.

Here is Prof. Orin Kerr's thought on the opinion.

This is a tricky issue.  Under the third-party doctrine, voluntary disclosure of information relinquishes a reasonable expectation of privacy.  Granted, the Supreme Court limited that principle in Carpenter v. United States for the creation of cell-site records on the ground that creating such records was not truly voluntary. You need to use a cell phone to participate in modern life, the Court reasoned, and you can't opt out of creating cell site location records as they are automatically and necessarily created by using a cell phone.
The question is how does this apply to Google location records that users need to affirmatively opt in to begin, and that they can stop, but that they might not know how to do.  In the framework of Carpenter, is it possible to participate in modern life without opting into Google location services?  And do we treat the generation of those records as voluntary because users can control those records or involuntary because users may not know those records are being created?

The Chatrie court does not answer this, unfortunately.  Because the court ultimately rules for the government on the good faith exception, it need not and does not take a position on whether a search occurred.  Instead, Judge Lauck mostly speculates about what the judge perceives as problems with existing doctrine and suggests that perhaps legislatures should ban geofence warrants[.]

Court of Appeals for the Armed Forces

CAAF's two-dayer of (for us who require CLE) cheap CLE, was a success. The handouts from the CLE are now available online.

March 3, 2022: No. 22-0124/AR. Joshua R. Sickels, Appellant v. Warden, ex officio U.S. Penitentiary Tucson, 93 S. Wilmont Rd., Tucson, AZ 85756 (Physical Custodian) and Commandant, U.S. Disciplinary Barracks, ex officio, Fort Leavenworth, 1301 Warehouse Rd., Fort Leavenworth, KS 66027 (Legal Custodian), and United States, Appellees. CCA 20220025. Notice is given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of habeas corpus was filed under Rule 27(b) on this date.

Here is a link to ACCA's denial of the writ.

Air Force Court of Criminal Appeals

United States v. Ashmore. A GP case to indecent recording and distribution of of indecent images, multiple communications of a threat, possession and distribution of CP. He was sentenced to 13 years, TF, RiR, a DD, and a reprimand. There were two issues.

• Is Appellant’s sentence inappropriately severe.
  
• Is Appellant entitled to sentence relief under this court’s plenary power after Appellant’s unit denied him leave for a year and a half after the Government began investigating him.

Findings and sentence affirmed.

Army Court of Criminal Appeals

United States v. Powell. An "enlisted" panel convicted him of sexual assault and sentenced him to 48 months, RiR, TF, a DD. The court finds that the military judge erred instructing the members about inconsistent statements and sets aside the findings and sentence.

United States v. Livingston. In this mixed plea members case the court set aside one specification and reduced the confinement from 17 years to 16 years 11 months. GP to disobedience, false official, unbecoming conduct, obstruction of justice, and A&Bs. (As to the A&B they were LIOs of assaulting an officer and the government went forward with them.) The members convicted him of rape, sexual assaults, aggravated sexual contact, more conduct unbecoming, and another obstruction of justice.

Appellate practice

Adam Lamparello, Appellate Oral Argument Tips. Appellate Advocacy Blog, March 12, 2022.

Worth the Read

Prof. Douglas A. Berman, "Does Mens Rea Matter?"

Anne Trafton, Objection: No one can understanding what you're saying.  MIT News, March 7, 2022. And, Simple Justice, For Whom Should Lawyers Write?

Rachel S. Cohen, Senior NCO (United States v. Zier.) convicted of sex crime will be allowed to retire at a lower rank. Air Force Times, March 9, 2022.