Three Strikes and (Maybe) You’re Out: Coleman v. Tollefson

Author: Chris Gant, Associate Member, University of Cincinnati Law Review

The adage borrowed from baseball, “three strikes and you’re out,” is used in law in different contexts. Many states have enacted “three-strikes” laws to punish repeat offenders: under these laws, a criminal receives a much longer sentence on his third conviction.[1] Another example is found in the Prison Litigation Reform Act (PLRA), under which inmates are prohibited from receiving in forma pauperis[2] status if they have brought three or more civil claims seeking in forma pauperis status that were dismissed.[3] Thus, in the baseball context, a PLRA dismissal is considered a “strike,” and the denial of pauper status is the “out.” However, the analogy is problematic in the legal context. Unlike in baseball, where the umpire’s decision to call a strike is unreviewable, a party in court can appeal the lower court’s decision. This hiccup in the baseball analogy is the question that was argued on February 24, 2015 in front of the Supreme Court in the case of Coleman-Bey v. Tollefson. The question was whether, under the “three strikes” provision of the PLRA, a district court’s dismissal of a lawsuit counts as a “strike” while it is still pending on appeal or before the time for seeking appellate review has passed.

In this case, the Sixth Circuit Court of Appeals issued a ruling contrary to the majority of its sister circuits. The Sixth Circuit held that a dismissal of a PLRA civil suit, while on appeal, counts as a third strike under the PLRA, and therefore precluded Coleman-Bey from receiving pauper status on his fourth PLRA claim during the pendency of the appeal of the third claim. The Sixth Circuit’s holding should be rejected by the Supreme Court because dismissals should only count as strikes under the PLRA when the plaintiff has exhausted or waived his appellate rights. This is the better, nondiscriminatory ruling, especially in light of the relatively small burden that pauper status places on the courts and Congress’s intent with the PLRA to penalize frivolous litigation, not freeze out meritorious claims.

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Warrantless Searches for Probationers: The Reasonableness of SCOTUS’s Balancing Test

Author: Collin L. Ryan, Associate Member, University of Cincinnati Law Review

When convicted felons are released on probation, may officers conduct a warrantless search of their homes without violating any constitutional rights protected under the Fourth Amendment? The Supreme Court, by conducting a balancing test, holds that officers may do so when they have a “reasonable suspicion” that probationers are violating their probation conditions; a standard of protection lower than the “probable cause” standard that protects fully free citizens from warrantless searches.[1] The specific fact-pattern before the Court that prompted this rule, however, involved a probation condition that explicitly stated a probationer will be subject to warrantless searches.[2]

But when the probationary condition is less explicit and merely subjects the probationer to unannounced home visits at any time, does the Court’s balancing test still apply, or does the legal analysis change? A current circuit split exists regarding that precise issue—the Fourth Circuit finds such warrantless searches based on a “reasonable suspicion” categorically unlawful, while the Eleventh Circuit permits them when they satisfy the Court’s balancing test.[3] Although the courts’ different interpretations are sensible, as a public policy matter, the Eleventh Circuit’s interpretation should be adopted because it better promotes the rehabilitative and societal-protective purposes of releasing individuals on probation.

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The Legality of Preventing Future Crime: Johnson v. United States

Author: Chris Gant, Associate Member, University of Cincinnati Law Review

“Minority Report” is a futuristic science fiction film in which crime is thwarted before it takes place.[1] In the film, a specialized police department, “Precrime,” apprehends would-be murderers before the murder is committed. Clairvoyant “Precogs” indicate that someone will commit a murder and Precrime apprehends the would-be murderers. This sci-fi notion of preventing crime has found reality in modern law. Preventing crime is part of the rationale behind the Armed Career Criminal Act (ACCA). The ACCA imposes longer prison sentences on criminals with criminal histories in order to prevent future harm.[2] In Johnson v. United States, a case to be argued in front of the Supreme Court on April 20, 2015, the Court must determine what constitutes a “violent felony” under the ACCA, and in the process will clarify a circuit split on this issue. Furthermore, the Court’s decision will significantly impact individuals in situations similar to that of defendant Johnson across the country, whose prison sentences depend on the scope of what is considered a “violent felony.” The Eighth Circuit has decided that possession of a short-barreled shotgun is a violent felony, but the Supreme Court should reverse this decision and hold that mere possession of a short-barreled shotgun is not a violent felony.

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Should There Be a Scienter Requirement for Designer Drugs?

Author: Chris Gant, Associate Member, University of Cincinnati Law Review

Advancements in chemistry and technology have lead to unprecedented innovation in the drug market. Some criminal-minded people have circumvented federal drug laws by creating so-called “designer drugs” like bath salts. The law’s treatment of those manufacturing and distributing designer drugs has led to a contentious circuit split. The split hinges on whether the government must prove that these “underground chemists” knew that they were dealing drugs analogous[1] to controlled substances in order to be convicted of a crime. The courts have interpreted the statute differently as to the scienter requirement applied to analogue substances. Of the circuits that have decided this issue, the majority, led by the Seventh Circuit, has concluded that the prosecution must prove that the defendant knew of the similarities between the controlled substance and the analogue. The minority, in contrast, has determined that the government only needs to prove that the substance was intended for human consumption. Given the plain language of the statute, the majority’s stance is the more reasonable, logical approach, and so should be adopted by the Supreme Court when it reviews this issue later this Term.

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Can Police Dogs Search Your Car Without an Officer’s Reasonable Suspicion?

Author: Chris Gant, Associate Member, University of Cincinnati Law Review

Imagine being pulled over for a small traffic violation. Despite lacking a reason for suspicion, the police officer decides that you look like someone who might have something illegal in the car. Then, you wait for the K9 unit to get to your car (ten minutes, twenty minutes, or longer), the search turns up nothing, and you are free to go. While to some, this intrusion is a slight annoyance, to others, this search could have vast consequences for the rest of their lives if the illegal search produces contraband. The Supreme Court has held that a K9 drug sniff does not constitute a search, but has left the question open for how long a traffic stop can be delayed for a K9 unit, stating only that the delay must be “reasonable.”[1] An expansion of the definition of what is a “reasonable” delay has major consequences, and has the potential to turn any traffic stop into a witch-hunt for drugs. This scenario is a potential result of the Supreme Court’s anticipated ruling in Rodriguez v. United States. The Eighth Circuit Court of Appeals held in United States v. Rodriguez that following the completion of a traffic stop, it was permissible under the Fourth Amendment for a police officer to make a driver wait while a dog was employed to sniff his car, despite the officer’s lack of reasonable suspicion that the car contained contraband.[2] The court held that the search was constitutional because it was merely a “de minimis” intrusion on the defendant’s rights.[3]

Fortunately, the Supreme Court has the opportunity correct the Eighth Circuit’s decision and protect Americans’ right against unreasonable searches. The Supreme Court should rid appellate courts of the “de minimis” doctrine with regards to the Fourth Amendment because any intrusion on the fundamental rights of American citizens—such as the protection against unreasonable searches and seizures—is an unacceptable intrusion, regardless of the degree of infringement. Moreover, the “de minimisstandard is an unworkable one where no-bright line rule can exist with practicality. The standard is ambiguous and leaves too much leeway for officers to intrude on the privacy of citizens, and so must be rejected.

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Are Magistrate Judges’ “Additional Duties” Stinking Up the Courtroom?

Author: Chris Gant, Associate Member, University of Cincinnati Law Review

On July 14, 2014, the Seventh Circuit in United States v. Harden held that the Federal Magistrates Act (FMA) does not permit magistrate judges to accept guilty pleas, even if both the prosecution and defense consent.[1] The decision severely limits a district court’s ability to manage its caseload and conduct business efficiently. Thankfully, this view on the Federal Magistrates Act is not universal: there is an emerging circuit split regarding whether a federal magistrate judge may accept a guilty plea to which all parties consent. The FMA contains a catch all provision that states, “[a] magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.”[2] The split arises out of the Supreme Court’s decision in Peretz v. United States and how to interpret the “additional duties” provision of the statute. In Peretz, the Court allowed a magistrate judge to conduct voir dire because both the prosecutor and defense counsel consented. Furthermore, the Court created a test for whether a magistrate judge has jurisdiction to conduct voir dire under the FMA. After Peretz, appellate courts have largely disagreed over what duties can fall under the “additional duties” of the FMA. The Seventh Circuit has held that the acceptance of guilty pleas is “too important” to fall under this provision. In so doing, it disagreed with the Fourth Circuit, which had previously held that the acceptance of guilty pleas is comparable to other duties that magistrates are undoubtedly able to perform.[3] In light of both decisions, it is evident that the Fourth Circuit correctly interpreted the FMA and Peretz because the general language in the statute proves that Congress intended to give federal judges leeway to experiment with possible improvements in the efficiency of the judicial process.[4] Furthermore, the Seventh Circuit’s ruling allows defendants to enter a plea but then revoke it with no consequences, which in turn leads to judicial waste.

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True Threats and the First Amendment: Objective vs. Subjective Standards of Intent to Be Revisited in Elonis v. United States

Author: Rebecca Dussich, Associate Member, University of Cincinnati Law Review

Last month, the Supreme Court heard oral arguments in an appeal of the Third Circuit’s decision in United States v. Elonis.[1] Anthony D. Elonis was convicted under 18 U.S.C. § 875(c), a federal statute that prohibits making “any threat to injure the person of another” via the internet.[2] Elonis does not dispute that he posted Facebook status messages regarding his desire to kill his wife, detonate bombs in the presence of law enforcement, and shoot up a local elementary school (among other threats).[3] Rather, he disputes that these were intended as threats, stating that he was merely “expressing frustration.”[4] At trial, the jury was instructed to apply an objective standard and construe the threats as they would be perceived by a “reasonable person,” not according to the standard requested by Elonis, which would have asked the jurors to look at the subjective intent of the speaker.[5] After the Third Circuit affirmed Elonis’ conviction, the Supreme Court granted certiorari on the issue of whether an objective or subjective standard is required by the statute under which Elonis was charged and, if the former, whether such a standard is constitutionally permissible as part of any “true threat” statute that regulates pure speech.[6]

In being asked to clarify this matter, the Court has an opportunity to extend protection for victims of stalking, harassment, and violence often associated with these crimes by permitting the objective standard of intent applied by the Third Circuit. Alternatively, if the Court finds that the First Amendment requires a subjective intent standard with respect to these laws, this ruling could further insulate the perpetrators of such crimes from prosecution by making conviction more difficult than the actual statute and principles of justice require. These divergent possibilities have garnered the attention of free speech activists and victims’ rights advocates alike, both of whom are concerned by a potential change in the law. But their concerns are likely unnecessary. Although it is possible that the Court will dramatically change the way lower courts review “true threat” statutes, it is more likely that the standard will stay exactly the same.

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Gaming the System: Are Ponzi Schemers Receiving Proper Criminal Sentences?

Author: Collin L. Ryan, Associate Member, University of Cincinnati Law Review

Ponzi schemes have existed for many years and their internal structure is well understood. Schemers solicit funds from individuals as “investments,” but keep the money themselves and pay “returns” to those investors from additional funds that are received from other new investors.[1] Consequently, the “returns” paid out attract more new investors to invest in the scheme, whose funds are then used to pay out more false “returns” to current investors, thus perpetuating the scheme. The fundamental component of this scheme is the pay out of fake returns. Without these payouts, the scheme would not attract new investors and would not grow and continue to profit the schemer.

Should the sheer act of paying out false “returns” to investors—an essential element of the scheme itself—allow operators of a Ponzi scheme to receive shortened lengths of criminal sentences? While some circuits do not allow fraudulent returns to mitigate sentencing lengths, the Sixth Circuit Court of Appeals recently held that, for purposes of calculating the range of criminal sentencing, the money paid back to a Ponzi scheme’s investors as “returns” on their investments offsets the victims’ total loss from fraud, and thus automatically lessens the length of criminal sentencing.[2]

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