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February 23, 2009

The inane and insane realities of federal felon-in-possession prosecutions and sentencings

A little decision today from the Eighth Circuit, US v. Littrell, No. 08-1149 (8th Cir. Feb. 23, 2009) (available here), provides yet another reminder of how the federal felon-in-possession law is utilized to convict and sentence defendants for all sort of outrageous behavior that has relatively little connection to the illegal possession of a firearm.  Here are the basic offense facts as described by the Eighth Circuit in Littrell:

Early on the morning of August 2, 2006, Littrell argued with his landlady, Melissa Stout, at her home in West Des Moines, where Littrell had been renting a room for about two months.  When Stout reminded Littrell that he owed her more than $1,000 in rent and other debts, Littrell went to his bedroom, returned with a hard-sided case, and pulled a firearm.  Littrell pointed the gun at Stout and threatened to kill her, then fired a bullet into the living room ceiling and out the roof.  Littrell and his girlfriend, Chrissy Highland, went to his bedroom and packed his belongings in pillowcases and sheets.  Littrell went to the basement and cut the phone lines and threatened to kill Stout if she left the house.  Some two or three hours after firing the shot, Littrell left with Highland in Stout’s car.  Stout called the police from the home of a friend.  Five days later, the police recovered the damaged car outside a store in Des Moines about four miles from Stout’s home.  Store employees told the police that the car had been there for several days.

To me, this account of Bobby Littrell's crime spree reads like the start of a law school exam in which a student is expected to name all the serious felonies with which Littrell might be charged in state court.  In the inane and insane "real-world" of federal crime and punishment, however, the defendant here merely faces the criminal charge of a felon-in-possession offense. 

And yet, as the Littrell opinion highlights, in the inane and insane world of federal sentencing, all the offense-related facts remain relevant to federal sentencing because the district judge applies a four-level guideline sentencing enhancement because he concluded (by a preponderance of evidence) that the Bobby Littrell "used the firearm 'in connection with another felony offense,' namely, theft of his landlady’s car."  The defendant appeals by stressing evidence that the landlady "regularly allowed Littrell to borrow her car" and by arguing that his illegal firearm possession was not "in connection with" his disputed car thievery.  Not surprisingly, Bobby Littrell finds few judicial friends in the Eighth Circuit.

Given the ugly facts of the Bobby Littrell's behavior, the district court's imposition and the circuit court's affirmance of a (statutory maximum) sentence of 10 years' imprisonment seems justifiable.  But I cannot help but wonder if the authors of the Bill of Rights would have been even more troubled by the ugly way federal criminal power is exercised here.  Rather than having state authorities indict and try the defendant for all his local crimes, the feds come in, secure a conviction through a broad regulatory law, and then obtain a long prison sentence by "proving" state crimes to a federal district judge (by a preponderance of evidence) at sentencing.  Thanks to modern criminal justice realities, federal prosecutors can easily make a sentencing end-run around most of the constitutional criminal procedure rules the Framers put into the Fifth and Sixth Amendments.

February 23, 2009 at 12:43 PM | Permalink


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Doug, I wonder what the founding fathers would have thought of the modern administrative state. There's really no going back.

Posted by: federalist | Feb 23, 2009 12:49:25 PM

“Rather than having state authorities indict and try the defendant for all his local crimes, the feds come in, secure a conviction through a broad regulatory law, and then obtain a long prison sentence by ‘proving’ state crimes to a federal district judge (by a preponderance of evidence) at sentencing.”

My thoughts exactly. And not only do they need to "prove" the other crime by a preponderance of evidence, but they can do so using mere police reports and other hearsay, without calling a single witness. In fact, the "in connection with" enhancement is the best example of this occurring.

For a perfect example, see US v. Cook, 550 F.3d 1292 (10th Cir. 2008). In that case, the AUSA told the Court that it was unable to locate the alleged state-crime victims, and called zero witnesses at sentencing. The enhancement still applied and was affirmed.

Posted by: DEJ | Feb 23, 2009 1:30:22 PM

Why the outrage. Congress enacts a criminal law under its constitutional powers. It sets a maximum penalty of 10 years. The defendant is convicted at trial after being duly charged and tried and having been afforded all of his constitutional rights. The judge in sentencin the defendant is permitted to take all aggravating and mitigating factors into consideration under an advisory guideline system and determines that the maximum penalty is appropriate. Where's the insanity?

Posted by: A Friend of the Blog | Feb 23, 2009 1:42:26 PM

I am not really "outraged" by this case, Friend, just a bit annoyed and troubled that federal tax dollars are being used to go after this local idiot through a broad (and I think partially unconstitutional) anti-gun law instead of having local authorities prosecute this fellow for his "real" crimes.

I suppose what really annoys me is that I just got teaching my students all the traditional criminal law rules that are given no moment or real consequence in the context of federal felon-in-possession prosecutions.

Of course, if we think most of the Framers' criminal justice rules are now just out-of-date complications for dealing with modern crime problems, this procedural story is not at all cause for concern. But if you like the Framers' model of adversarial justice with lots of procedures and lots of local check-and-balances, this case is a window into a very different real world in USA>

Posted by: Doug B. | Feb 23, 2009 2:32:58 PM

"I suppose what really annoys me is that I just got teaching my students all the traditional criminal law rules that are given no moment or real consequence in the context of federal felon-in-possession prosecutions."

Well, gee, we shouldn't have these laws because a law professor might have a big part of his precious syllabus obviated.

"But if you like the Framers' model of adversarial justice with lots of procedures and lots of local check-and-balances, this case is a window into a very different real world in USA."

This is gobbledygook. Were the Framers really all that enamored of criminal procedure? And what local checks-and-balances? Yes, the Framers would likely be shocked by the sheer number of federal crimes and probably would have doubted the constitutionality of some of them, but you cannot seriously argue that the Framers would have wanted (as a constitutional matter) local checks and balances (other than the right of vicinage) in the prosecution of federal crimes presumed constitutional.

Presumably, what you are irritated about is the pendant nature of the state law crimes. Fine. What you could say is that the feds have stretched the Commerce Clause power to create felon-in-possession laws which, due to the federal sentencing guidelines, can be used to prosecute crimes that should be left to the state, and which are easy to prove thus obviating the need to prove up the erstwhile state law crimes which are now just aggravating factors.

You can say that the Framers wouldn't be happy with this. But talking about local checks and balances and lots of procedures borders on the nonsensical.

Posted by: federalist | Feb 23, 2009 3:05:47 PM

Since your name suggests a degree of expertise, federalist, I hope you can ad will explain to me why the Framers invested so many words and so much energy in the constitutional criminal procedures set out in the Fifth and Sixth Amendments (which exist, of course, in addition to all the limits of federal power and the police power set forth in other parts of the Constitution).

I read these Amendments to reflect the Framers' model of adversarial justice with lots of procedures (e.g., indictments, due process, public trial, confrontation, compulsory process, counsel) and lots of local check-and-balances (local Grand jury and petit jury, trial where crime committed).

Perhaps you are just fine with having these procedures wattered down in federal court whenever Congress criminalize some other broad activity (like, say, honest services fraud). But doing so give the feds a lot of power to do an end run around provisions that the Framers clearly considered important and probably wanted to have enduring consequences.

And the point is not that "my precious syllabus is obviated," but rather that what all law students get told are the foundational aspects of criminal law are often not ever in play in modern federal prosecutions of this kind of low-hanging fruit.

Key point: I am not trying to asserting some extreme position or even calling for a radical change to this part of the criminal justice universe. Rather, I am trying to encourage every to reflect on whether they think this is how a sensible criminal justice system should operate.

Posted by: Doug B. | Feb 23, 2009 5:53:30 PM

Doug, I get that you are trying to get people to reflect, and didn't I pretty much restate your concerns?

And I get that your point is not that your syllabus was obviated, I just couldn't resist that barb--just like you cannot seem to resist insinuating that I am racially biased.

My point was your amateurish response to the earlier poster. The Fifth and Sixth Amendments are of bedrock importance, but are they really "lots of procedures"? That seems a stretch. And since the culprit here is the expansion of federal power, not the violation of the Fifth and Sixth Amendments, or, for that matter the obviating of "local checks and balances" (since the feds still have to respect the vicinage, although the federal vicinage is different from the state vicinage), it seems odd to frame it in these terms.

The problem you identify is that the feds get to punish crimes that really belong in state court by use of the felon-in-possession laws and, since proving a felon in possession charge is relatively easy to do and the max sentence is pretty harsh and since the federal judge can use uncharged crime evidence to jack up the sentence, the feds can effectively punish these state crimes without having to provide all of the bedrock procedural protections in the Fifth, Sixth and Seventh amendments that would be given if the feds didn't prosecute these local crimes. Or at least that's the argument.

Of course, I am sympathetic to your concerns (although I don't agree with them--the federal government has expanded, and politically speaking I don't like that so much, but if it's not going to shrink any time soon, why in the world would I want it to shrink in an area I care about, i.e., public safety). But I cannot resist pointing out a couple of things.

First, let's assume that federal felon-in-possession laws are valid. If that's the case, then none of the procedures (read rights) would be violated at all. Therefore, the argument that the obsessed-with-procedure Framers would have been upset with the undermining of the procedural protections seems entirely besides the point.

Second, it seems odd to argue that felon-in-possession laws are end runs around these amendments because the states can enact the same laws. So what difference does it make to the criminal what scheme he's being convicted with?

You don't like felon-in-possession laws, and you don't like the overfederalization of the criminal law. That's fine. But those are mainly policy issues, and you shouldn't be invoking the Framers concern over procedure. The Framers may be ticked about the Commerce Clause being expanded. Make that argument. Don't conjure up the Framers rolling in their graves because prosecutors pick and choose which felon gets to feel the federal heat. It isn't happening.

Posted by: federalist | Feb 23, 2009 8:10:54 PM

What you keep missing, federalist, is the synergy of these matters and the (always growing) state/federal prosecutorial interest in finding the easiest/cheapist way to go after those bad guys they want to punish while affording those bad guys the fewest rights possible.

We could -- and many do -- assert that overfederalization of the criminal law is a significant substantive/structural problem. Beyond the fact that these arguments at the constitutional level largely died with Raich, there is a distinct concern for those of us (including the Framers and Justice Scalia) who view procedural checks-and-balances to be a distinct and distinctly important "bulwark of liberty."

So, to return to your own phrasing, if you really believe that the "Fifth and Sixth Amendments are of bedrock importance," why are you dismissive of my concern that the defendant here is function being punished for a (disputed) state crime of car theft without the benefit of any of the procedures set forth in these amendments?

Put another way, federalist, I think you can/should simply acknowledge that you do not really view the procedures of the Fifth and Sixth Amendment to be that important in light of your more fundamental conerns about pulic safety. That is a principled view, and one that certainly finds expression in these kinds of cases. But you cannot consistently claim a real commitment to constitutional criminal rights while also being dismissive of my concern about how these rights are now regularly evade through broad regulatory laws enforce by federal criminal prosecutors.

Posted by: Doug B. | Feb 24, 2009 4:12:09 PM

Doug, I can explain it to you, I cannot understand it for you.

First of all, I am not dismissive of the concern at all. There are very good policy arguments to be made here, and I agree with many of them--although I don't like the idea of federal power being shrunk for the benefit of criminals--it's like government spending, I don't like it so much, but if they're gonna tax me, I want my locality getting what's coming to it. I don't see how you say I miss this points--I get it. The real crime they're going after is not the gun charge. And they've chosen a very easy crime to prove as a proxy for the state charges. And they have a pretty tough hammer. And I think it's crystal clear from my earlier posts that I get what your beef is.

What I don't get are your tortured arguments. The "local checks and balances" point is just silly (unless you're talking about overfederalization, and then you should just say Commerce Clause directly) since the feds have to follow rules guaranteeing local participation in the conviction. As for the focus on procedure--well, I guess we can debate about "lots of procedures", but the point is that the issue is not the lack of procedure. The guy has plenty--they just don't mean a whole lot when the guy faces a harsh sentencing scheme and a pretty easy crime to prove, but it's hard to argue that a criminal has a right to question which criminal gets the hammer (i.e., the exercise of prosecutorial decisionmaking) or some generalized grievance that the feds created a crime that's too easy to prove. Don't RICO, Conspiracy etc. suffer from the same problem, but no one seriously argues that the Framers are rolling over in their graves because, in certain cases, the procedural protections don't mean a ton because the evidentiary burden is easily satisfied and the hammer is a biggie. People who leave a blood trail to their doorstep have the same problem.

Thus, the issue is the expansion of the commerce clause power into what's almost a general police power.

Honestly, I don't see how you can say that I am dismissive of concerns. I just don't think that your arguments are all that persuasive. When they are unpacked, you're left basically stomping your feet and saying "That's not fair--the feds can't create an easy-to-prove crime and then exercise discretion to go after criminals violating it on the basis of the seriousness of their state crimes." The Framers didn't say a word about the exercise of prosecutorial discretion (other than EPC issues), nor did they create a rule that the prosecutors have to charge for what they are really after or nothing at all (Sorry, Al Capone, the tax evasion conviction stands), nor is there a serious question about sentencing discretion turning on facts surrounding the crime. Your argument is seductive, but it fails because you are imputing some generalized notion of your sense of fair play onto the Fifth and Sixth Amendments. It ain't there. Remember, the Founders didn't think you deserved a paid for lawyer.

Posted by: federalist | Feb 24, 2009 7:25:16 PM

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