Court Holds Providing Translation Services for ISIS Constitutes "Material Support" to a Terrorist Organization

Benjamin Carpenter founded Ahlud-Tawhid Publications ("ATP"), an organization that translated and published ISIS propaganda in a variety of languages. Federal agents arrested him after he provided such services to an undercover FBI agent posing as a member of ISIS. A federal grand jury subsequently indicted him with one count of attempting to provide material support or resources to a terrorist organization in violation of 18 U.S.C. § 2339B. A jury convicted him after a five-day jury trial, and the District Court sentenced him to 240 months imprisonment - a sentence within the range recommended by the United States Sentencing Guidelines.

Carpenter challenged both his conviction, certain evidentiary rulings made by the District Court, and his sentence on appeal. The Sixth Circuit rejected each argument he raised and affirmed his conviction in a published opinion. 

The Court first rejected Carpenter's argument that providing translating services did not constitute providing a "service" to a terrorist organization in violation of 18 U.S.C. § 2339B. It first found that providing translating services to ISIS furthered its "propaganda mission." Next, it held that the statute's list of "service" examples was not a "phrase of limitation," excluding translation services, but instead indicated that the services Carpenter provided fell within the statute's proscriptions. It additionally concluded that this reading did not make the statute unconstitutionally vague. 

The Court next turned to Carpenter's challenge to various evidentiary decisions made by the District Court. It rejected his argument that the District Court erred in admitting evidence of Carpenter's role in ATP, ATP's work product, and Carpenter's interaction with ISIS's work product as improper FRE 404(b) evidence. It held that the District Court properly concluded it was admissible "intrinsic acts" evidence demonstrating Carpenter's role within ATP. It also found that the District Court properly admitted the evidence under FRE 403.

Carpenter also challenged the District Court's decision to admit screenshots of his WhatsApp messages with an ISIS-supporting romantic interest, arguing the government did not provide notice of this plan pursuant to FRE 404(b). Not so, the Court held, noting the District Court properly admitted the evidence under FRE 405 because Carpenter made his reputation an issue by raising an entrapment defense. Since the evidence was admissible under FRE 405, the rules did not require prior notice.

Carpenter also challenged the District Court's decision to allow lay testimony from an FBI agent that the abbreviation "JJ" in Carpenter's WhatsApp messages meant "Jihadi John," a known ISIS member. The Court held the District Court did not err, however, because Carpenter did not show that the identification was faulty, and, even if it was, any error was harmless.

The Court also rejected Carpenter's claim the District Court erred by refusing to let him stipulate that he knew ISIS was a terrorist organization. Since his requested stipulation did not relate to prior convictions, the Court held that the Government was not obligated to agree to the stipulation, and the Court was not required to grant it.

Carpenter also claimed the District Court erred in entering a protective order permitting an undercover FBI agent to use a pseudonym at trial. However, the Court found the order neither abused the District Court's discretion nor violated the Confrontation Clause of the United States Constitution because the District Court reasonably weighed Carpenter's right to confrontation with the danger posed to the agent by disclosing his or her identity.

The Court also rejected Carpenter's challenges to the jury instructions the District Court used during his trial. First, it held the District Court did not abuse its discretion in refusing to give an instruction regarding bad-acts evidence under FRE 404(b) because it did not admit such evidence. It also held the District Court did not abuse its discretion in using the Sixth Circuit's pattern Allen charge. Noting the District Court administered the charge several days into the jury's deliberation and promptly after it reported it was deadlocked, the Court held the District Court did not coerce the jury to reach a decision.

The Court next affirmed the District Court's sentence. In doing so, it rejected Carpenter's argument that the District Court misapplied U.S.S.G. § 3A1.4, which enhances a proposed sentence based on “federal crime[s] of terrorism," finding the District Court had sufficient evidence Carpenter specifically intended "to influence or affect the conduct of the Egyptian government by intimidation or coercion and to retaliate against [the] Egyptian government['s] conduct against ISIS."

The Court likewise found that Carpenter's sentence was substantively reasonable. It found that the District Court did not abuse its discretion in imposing his within-Guidelines sentence, citing the seriousness of his offense, his "lack of repentance," and his "high risk of recidivism." 

Too Heavy a Lyft: Court Upholds Substantial Upward Variance for Lyft Carjacker

Darese Haile pleaded guilty to aiding and abetting four carjackings, each with a set of particular characteristics: each involved the carjacking of Lyft drivers where the assailants required each of their victims to strip naked. One of the assailants also brandished a firearm during each carjacking, and, during the third carjacking, one of the assailants struck the victim in the face with one. 

Haile pleaded guilty to aiding and abetting each carjacking. Prior to sentencing, he objected to two enhancements recommended in his presentence investigation report: (a) a six-level increase under U.S.S.G. § 2B3.1(b)(2)(B) because an assailant used a firearm to strike the third Lyft driver; and (b) a two-level increase U.S.S.G. § 2B3.1(b)(3)(A) because the same driver suffered an injury as a result of the strike. Minimizing his role in the carjackings, Haile argued that the referenced enhancements should not apply, arguing he did not brandish a firearm and that the District Court should give him a mitigating role reduction pursuant to U.S.S.G. § 3B1.2.

The District Court overruled each of his objections and denied his request for a mitigating role reduction, holding that the Guidelines recommended a sentencing range of 121 to 151 months. Characterizing the carjackings at "particularly vicious," and citing the humiliation inflicted upon the Lyft drivers, the Court varied upward and sentenced him to 180 months in prison - the statutory maximum. Haile subsequently appealed and challenged both the procedural and substantive reasonableness of his sentence.

The Sixth Circuit upheld his sentence in a published opinion. It found no procedural error, noting that ample evidence supported the District Court's conclusion that Haile was one of the carjackers and that his role in the carjackings was not minimal. Accordingly, it found that the record supported each of the firearms-related enhancements, noting that, regardless of whether he or his partner assaulted the third driver, the assault was relevant conduct for the offense because it was "reasonably foreseeable" that his partner would brandish and use a firearm during the carjackings considering his previous connections to firearms and stolen vehicles.

The Court next rejected Haile's argument that the District Court erred by allegedly not explaining why it denied his request for a mitigating role reduction. Although brief, the Sixth Circuit found the District Court's explanation sufficient because the evidence was sufficient to show that Haile was "a main participant" in the carjackings. 

Haile next claimed that the District Court failed to consider his age in imposing his sentence. Although Haile claimed it was substantive error - and subject to an abuse of discretion standard - and the Government claimed it was a procedural error subject to plain error review, the Sixth Circuit held the type of error was irrelevant because the District Court, in fact, considered Haile's age when it considered his personal history and characteristics.

The Sixth Circuit next rejected Haile's challenge to the substantive reasonableness of his above-Guidelines sentence. In doing so, it found the record adequately supported the District Court's conclusion the Section 3553 factors, in particular the vicious nature of the car jackings and the humiliation Haile and the other assailant caused their victims, supported a substantial upward variance.

The opinion in Haile indicates both trial and appellate counsel vigorously advocated for their client. Nevertheless, it reflects the substantial deference afforded District Court sentencing decisions.

Sixth Circuit Questions Precedent Under the Federal Wiretap Act but Refuses En Banc Reconsideration

Guest post by Niles Illich, Ph.D., J.D.

In August a three-judge panel followed precedent and held that the “clean-hands exception” to the exclusionary rule in the Federal Wiretap Act (created in the 1995 case United States v. Murdock) remains good law. United States v. Grayson, No. 24-5988, 2025 WL 2366262, at *5 (6th Cir. Aug. 14, 2025). The panel, however, expressed its reservations about Murdock and wrote:

·         “…several of our sister circuits,. . . have refused to read a clean hands exception into the statute. See United States v. Crabtree, 565 F.3d 887, 889 (4th Cir. 2009); Chandler v. U.S. Army, 125 F.3d 1296, 1302 (9th Cir. 1997); In re Grand Jury, 111 F.3d 1066, 1079 (3d Cir. 1997); United States v. Vest, 813 F.2d 477, 481 (1st Cir. 1987).”

·         “We do not discount Grayson’s textual analysis, the touchstone for modern day statutory interpretation. See Niz-Chavez v. Garland, 593 U.S. 155, 160 (2021) (explaining that we interpret statutes by first exhausting “all the textual and structural clues bearing on [its] meaning” (citation modified)). Nor would we likely consider the statute’s legislative history in interpreting that text in the way Murdock chose to do.”

·         “Indeed, the use of legislative history was particularly unusual in Murdock, where the panel relied on the fact that, to its mind, ‘nothing in the legislative history’ spoke against the ‘clean hands’ exception.”

·         “Right or wrong, in other words, Murdock controls.”

This case arose when Ashley Grayson, a Dallas social media influencer, allegedly asked Olivia Johnson and her husband Brandon Thomas to murder three people who had criticized or threatened her. Johnson illegally recorded a FaceTime call of Grayson detailing the murder-for-hire plan and later turned the footage over to federal authorities. Grayson moved to suppress this evidence under the Federal Wiretap Act but the district court denied relief.

A federal district court in Memphis convicted Grayson of conspiracy to commit murder-for-hire (while acquitting a co-defendant). Grayson appealed, arguing the district court erred in denying the motion to suppress. The Sixth Circuit concluded that while the recording may have technically violated the Wiretap Act, Murdock’s “clean-hands” exception applied. This exception allows illegally obtained recordings to be used so long as the government was not involved in the unlawful interception.

Appellant sought en banc reconsideration, but the Sixth Circuit denied relief. Grayson will seek to resolve the circuit split in the Supreme Court.[1]

Niles Illich is board-certified by the Texas Board of Legal Specialization in Criminal Appellate Law. Niles has practiced in most federal circuits. Niles can be reached through his website www.appealstx.com or niles@appealstx.com.

---

[1] Nothing in this blog post is intended as an admission. Rather the facts are provided based on the procedural posture of the case.

 

Sixth Circuit Holds Denials of Motions for Early Termination of Supervision are Reviewable on Appeal and the Record Must Demonstrate the District Court Considered the 3553(a) Factors.  

    Edwin Tavarez moved to terminate his supervision early. The district court denied his motion by simply checking the box “The Request is Denied” on the Supervision Report. When Tavarez moved for access to the information underlying the district court’s decision, the district court denied his request. The district court also denied Tavarez’s motion for extension of time to file a notice of appeal, concluding his appeal was barred by 18 U.S.C. § 3742(a). Tavarez timely appealed.

    On appeal, the Sixth Circuit held 18 U.S.C. § 3742(a) does not bar Tavarez’s appeal because that statute is inapplicable to motions for early termination of supervised release. Recognizing the Court’s precedent has “sent mixed signals regarding the scope of 18 U.S.C. § 3742(a),” the Court took the opportunity to clarify that “§ 3724(a) by its terms is completely inapposite in a case where the district court denies a defendant’s motion to modify his sentence.” p. 6. Section 3742(a) only applies to sentences newly imposed by the district court. It does not apply to reviews of requests to modify a sentence, such as motions for early termination of supervision. p. 6.

    Under 18 U.S.C. § 3583(e)(1), a district court may terminate a term of supervision after one year if, after considering the § 3553(a) factors, it is satisfied that termination is warranted by the conduct of the defendant and the interest of justice. Tavarez argued the record must also demonstrate the district court considered the § 3553(a) factors when the district court denies a motion for early termination. The Sixth Circuit agreed. pp. 8-9. In reaching this conclusion, the Court relied on interpretations of analogous provisions in § 3853(e)(1) and § 3582(c)(2), an unpublished opinion from this circuit, and decisions from several sister circuits. pp. 8-9.

    On the merits, the Sixth Circuit found “no indication that the district court considered the relevant § 3553(a) sentencing factors when denying Tavarez’s Early Termination Motion.” p. 10. The Court denied Tavarez’s motion by simply checking the box “The Request is Denied” on the Supervision Report. Although the Supervision Report recommended denying the motion, the reasons offered—his struggle to complete monthly reports timely and his having not completed half of his supervision term—were not related to any relevant § 3553(a) factor. p.10. The Court also rejected the government’s argument that it should look to prior orders where the district court considered the § 3553(a) factors. The Court noted that the most recent order explicitly considering the § 3553(a) factors was a year and a half old by the time Tavarez filed his motion for early termination. And “[c]rucially, even if the facts of Tavarez’s case were fresh in the district court’s mind, the lack of any explanation renders it ‘impossible to discern from the record how or why denying the motion to terminate comported with consideration of the relevant § 3553(a) factors.’” p. 10.

    Tavarez also appealed the district court’s denial of his request for access to the information underlying the district court’s decision, arguing the disclosure was required under Federal Rule of Criminal Procedure 32. The Court concluded Fed. R. Crim. P. 32 is inapplicable to early termination motions. Title 18 U.S.C. § 3583(e)(1) explicitly directs courts to follow the rules relating to the modification of probation. Those rules are found in Fed. R. Crim. P. 32.1(c), which contains no disclosure requirement. pp. 11-12.

    The Court vacated the district court’s order denying the motion for early termination and affirmed the district court’s denial of access to the information underlying the district court’s decision.

Sixth Circuit Remands for Resentencing Based on Erroneous Application of Stolen-Firearm Enhancement

 

In an unpublished, per curiam opinion, a panel of the Sixth Circuit rejected the appellant’s Second Amendment challenge to his § 922(g)(1) conviction, but reversed the sentence on the grounds that the district court erred in applying the stolen-firearm enhancement because it relied on quadruple hearsay in a police report. This opinion is potentially helpful when challenging sentencing enhancements where the government’s proof in support of the enhancement consists solely of police reports, particularly reports containing hearsay statements.

Curtis Euge-Darnell Black was charged with a single count of possessing a firearm as a felon. He unsuccessfully moved to dismiss on the ground that 18 U.S.C. § 922(g)(1) violated the Second Amendment in all its applications and then entered a conditional guilty plea preserving his right to appeal the denial of the motion to dismiss. On appeal, Mr. Black argued that § 922(g)(1) violates the Second Amendment as applied to him. He relied on the Sixth Circuit’s decision in United States v. Williams, 113 F.4^th 637 (6th Cir. 2024), where the court suggested that § 922(g)(1) might be susceptible to an as-applied challenge where the defendant can demonstrate that he is not dangerous. The court held that Mr. Black’s claim failed under plain-error review, citing his past convictions for violent offenses.

The Sixth Circuit held, however, that the government had failed to prove by a preponderance of the evidence that the gun was stolen. At sentencing, the government introduced a police report documenting an interview with the registered owner of the gun at issue in Mr. Black’s case. The owner stated that, three years earlier, he lent the gun to a friend. He later attempted to contact the friend to ask for the gun back but received no response. The owner then contacted a family member of the friend, who told the owner that the gun had been stolen. This police report was the only evidence that the gun was stolen. Over Mr. Black’s objection, the district court applied U.S.S.G. § 2K2.1(b)(4)(A)’s 2-level stolen-firearm enhancement. This produced a guidelines range of 37 to 46 months’ imprisonment. The court imposed a 42-month sentence.

The court held that, in applying the enhancement, the district court violated Sixth Circuit precedents limiting the use of police reports at sentencing. It quoted United States v. Jones, 815 F. App’x 870, 878 (6th Cir. 2020) (“We do not endorse the regular use of police reports as evidence in sentencing determinations.”), and its holding that a district court may rely on information in a police report – including hearsay statements – only if the information has a “minimal indicium of reliability.” The court held that “[t]he unreliable nature of this police report is evident from its multiple layers of hearsay.”

Judge Murphy filed a separate opinion concurring as to the Second Amendment issue but dissenting as to the sentencing issue. He wrote that Mr. Black had forfeited the issue because, despite arguing at sentencing and on appeal that the government had presented insufficient evidence that the gun was stolen, he did not specifically cite the government’s reliance on hearsay evidence as the basis for challenging the enhancement.

Sixth Circuit Holds District Court Went Too Far in Admitting FRE 404(b) Evidence.

Cheyenne Witt tragically died of a morphine overdose after Appellant Jay Sadrinia, her dentist, prescribed her morphine twice in three days, leading her to have almost triple the fatal amount in her blood. A federal grand jury subsequently charged Sadrinia with four counts of illegally distributing controlled substances to Witt without a legitimate medical purpose in violation of 21 U.S.C. § 841(a)(1) and one count of illegally distributing morphine to her resulting her death in violation of 21 U.S.C. § 841(b)(1)(C).

Just twelve days before Sadrinia's trial, the Government filed a notice of "inextricably intertwined and/or Rule 404(b) evidence." Specifically, the Government indicated it intended to introduce testimony from several of his former employees about some of his prior "bad acts," including testimony that he once used another dentist's prescription pad to prescribe opioids while the dentist was out of the office. Although the District Court ruled that the Government's notice was untimely, it ultimately allowed the Government to present testimony from the same former employees during Sadrinia's trial, over his objection. Such evidence included testimony from: (a) Sadrinia's former assistant that he used foul language when he fired her and after she had threatened to report him for malpractice; (b) one of Sadrinia's former colleagues that he had used her prescription pad while she was outside the United States; and (c) his former officer manager that he had used the same colleague's prescription pad and that, when she quit, she warned him he would "kill someone." The District Court overruled Sadrinia's objection, finding that such testimony was "intrinsic" evidence of the crimes charged relevant to his "knowledge and intent." In addition, it did not provide a limiting instruction to the jury for such evidence.

The jury subsequently acquitted Sadrinia on Counts One through Three, but convicted him on Count Four (the initial morphine prescription) and Count 5 (the two morphine prescriptions that resulted in Witt's death. The District Court denied Sadrinia's motion for acquittal or a new trial and sentenced him to 240 months' imprisonment - the mandatory minimum.

On appeal, Sadrinia challenged the sufficiency of the evidence against him, and he alleged the District Court erred in overruling his objection to the introduction of the referenced prior bad acts evidence. In a published opinion, the Sixth Circuit held that the Government presented sufficient evidence to support his convictions on both counts. Citing Sadrinia's 30 years of experience in dentistry, expert testimony that the amount of morphine he prescribed was rarely, if ever, appropriate for pain management in dental patients, and that his prescriptions exceeded the amount permitted by Kentucky regulations, the Court held that a rational jury could have concluded that Sadrinia knew the last prescription he wrote for Witt lacked a legitimate medical purpose. 

Although it found the evidence sufficient to support his convictions, the Court reversed them and remanded his case for a new trial. In doing so, it held that the District Court abused its discretion in admitting intrinsic evidence testimony from his former colleague and employees. It held that, regardless of whether such evidence was relevant, it was not "intrinsically intertwined" with Sadrinia's actions because they were too temporally removed from Witt's death. 

The Court also rejected the Government's argument that the District Court's error was harmless. It noted that the evidence was not sufficiently "overwhelming"  to overcome the error and that the District Court failed to provide a limiting instruction. Additionally, it held that the Government's use of such testimony in its closing arguments only made the error more prejudicial.

FRE 404(b) evidence always poses a risk to the fairness of a defendant's trial. In this case, the Sixth Circuit found that such evidence went too far.  

 

 

Jury’s question was an inquiry about scheduling and not about substantive elements of offenses

         A jury convicted Dwayne Robinson of being a felon in possession of firearms that were found in a car that he had been driving. United States v. Robinson, --- F4th --- (6th Cir. 2024). https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0086p-06.pdf On appeal, he argued that the district court acted improperly by answering a question from the jury without consulting counsel. The court informed the parties about the question before it brought the jury back into the courtroom to announce its verdict. There was no objection to the question and no objection in a post-trial motion, so the plain error test was applied on appeal. Slip Op. at 4.

         The Sixth Circuit determined that Mr. Robinson’s reliance on Fed.R.Crim.Proc. 51 did not provide a path around the plain error test because the Rule requires a party to make an objection even if the claim of error is to some action of the trial court that has already taken place. Since the parties disputed what the note said and the Sixth Circuit had “no idea what the original note said,” the failure to object prevented the district court from taking any remedial action and making an “appropriate record.” Slip Op. at 6.

         The Sixth Circuit viewed the jury’s question as an inquiry about “scheduling information” and not about “substantive elements” of the offenses being tried. Slip Op at 8. In the Court’s words, “When the jurors asked about the next steps if they did not reach a verdict that night, the court simply told them that they would return the next morning to continue deliberating.” Id. Since the inquiry concerned “a mere scheduling matter,” the district court “had no duty to seek counsel’s input.” Id.

        Several other issues were discussed in the opinion. One issue arose when a detective was asked on cross-examination to concede that no eyewitness saw Mr. Robinson with the guns. The detective responded that an eyewitness “saw him with a handgun the day before, but that’s on a different case.” Slip. Op. at 8.

        Prior to trial, the government agreed not to use any evidence about an “ongoing homicide investigation” into Mr. Robinson. Slip Op. at 10. The investigation involved an eyewitness who saw him with a gun. The Sixth Circuit upheld the district court’s ruling that the defense’s cross-examination “opened the door” to the detective’s response. As the Sixth Circuit saw it, the cross-examination “implicated” the ongoing investigation and “would have left a false impression” that no one ever saw Mr. Robinson in possession of a gun. Id. The Court relied on precedent that allows a party to admit evidence in response to a misleading impression created by the other party. Id.    

       Another issue stemmed from a jury instruction. The parties proposed an instruction that Mr. Robinson did not need to own the firearms to possess them. The district court, however, instructed that: “Ownership is irrelevant to the issue of possession.” The Sixth Circuit held there was no plain error under current law and pointed out that Pattern Criminal Jury Instruction 12.01(2)(A) recommends an instruction that the defendant does not have to own the firearm to possess it.

        Mr. Robinson also challenged his 15-year mandatory minimum sentence under the Armed Career Criminal Act. The sentence was based on convictions in 1991, 2013, and 2017. Mr. Robinson argued that the jury had to make the finding that he committed the three crimes on different occasions. While the case was on appeal, Erlinger v. United States, 602 U.S. 821 (2024) was decided. The Sixth Circuit reiterated its earlier conclusion that Erlinger error can be harmless. See United States v. Campbell, 122 F.4th, 630-33 (6th Cir. 2024). In doing so, the Court found that the error was not harmful merely because the statutory maximum of 10 years was increased to 15 years.

 

 

United States v. Simmons - Warrant to Search Drug Trafficker's Home Upheld Under "Continual and Ongoing Operations" Theory

In United States v. Simmons, --- F.4th --- (6th Cir. 2025), the Sixth Circuit upheld the denial of a motion to supress evidence found in a drug trafficker's home.

In April 2022, Grand Rapids police began investigating Lamon Simmons after a confidential informant, who had previously conducted reliable drug buys, identified him as a cocaine dealer.  Over several months, officers arranged controlled buys confirming his drug sales and observed him often traveling between two locations: a suspected stash house on Holly Street and his primary residence on Weatherwood Drive, where he parked his cars and listed his address with federal probation. 

In December 2022, police obtained search warrants for both locations, citing Simmons’s movements and the likelihood that evidence of drug trafficking—such as cash, records, or paraphernalia—would be found in his home.  The searches uncovered guns, ammunition, cash, and various drugs, leading to his indictment on multiple drug and firearm charges. 

Simmons moved to suppress the evidence from his residence, arguing that the warrant lacked probable cause because it failed to establish a direct link between his drug sales and his home.  The district court denied the motion, applying the “continual-and-ongoing-operations” theory, which recognizes that drug traffickers often keep evidence at home, even when sales occur elsewhere.  The court found that the extended surveillance, controlled buys, and officer experience made it reasonable to infer that Simmons’s residence contained evidence of his crimes.  Additionally, even if probable cause was debatable, suppression was unwarranted under the good faith exception.

On appeal, Simmons argued that the warrant lacked probable cause.  The Sixth Circuit disagreed, reaffirming the “continual and ongoing operations” theory.  The Court held that a warrant can be valid even without direct evidence of drug sales at a residence, as long as there is strong evidence linking the home to a trafficker’s ongoing activities.  While simply being a dealer is not enough to justify a search, the Court explained that traffickers running sustained operations are likely to keep drugs, money, or records at home.

The Court found that this connection was supported by multiple controlled buys, Simmons’s frequent travel between locations, and his history as a trafficker.  Citing United States v. Sanders, 106 F.4th 455, 461 (6th Cir. 2024), the Court reiterated that officers do not need to witness drug sales at a residence to establish probable cause.  Instead, a pattern of trafficking activity, combined with a reasonable inference that evidence would be found at home, is sufficient.  Given the controlled buys, informant reports, surveillance, and officer expertise, the Court concluded that the affidavit established a strong enough link to Simmons’s home to justify the search.

Judge Ritz, in a concurring opinion, stated he would have upheld the search solely under the good-faith exception.  While he acknowledged the affidavit may not have been the strongest, he found it detailed enough to justify officers relying on it.  He rejected Simmons’s claim that the affidavit was “bare bones,” noting that it included a reliable informant’s firsthand observations, multiple controlled buys, and an experienced officer’s analysis. 

Split Decision Upholds Conviction for Hobbes Act Extortion and Federal-Program Bribery

In United States v. Sittenfeld, -- F.4th -- (6th Cir. 2025), the Court of Appeals upheld the conviction of Alexander "P.G." Sittenfeld for Hobbes Act extortion and federal-program bribery. Sittenfeld was a candidate for mayor of Cincinnati, running from his seat on the city council. He solicited donations to fund his campaign. One set of donations he solicited from a local developer, Chinedum Ndukwe, seeking create a mixed-use development project at 435 Elm Street in Downtown Cincinnati. The case proceeded to trial. A jury convicted Sittenfeld of counts 3 and 4 of the indictment for Hobbes Act extortion and federal-program bribery. Ndukwe became the target of a separate investigation into public corruption. The FBI then turned Ndukwe into a source used in this case. Through Ndukwe and other undercover agents, many conversations with Sittenfeld referencing the Elm Street property and campaign donations were recorded. The indictment specified one of the undercover agents as the payor of the alleged bribes. When it came time to charge the jury, the parties agreed on jury instructions that broadened the language of the charge to "another person" instead of the named agent.

Sittenfeld challenged his convictions on sufficiency of evidence and constructive amendment of the indictment grounds. The Court of Appeals rejected these challenges. 

Turning to McCormick v. United States, 500 U.S. 257 (1991), and Evans v. United States, 504 U.S. 255
(1992), the Court of Appeals evaluated the sufficiency of evidence supporting Sittenfeld's conviction. To support a conviction, the government must convince a jury beyond reasonable doubt that the elected official received campaign donations in return for an explicit promise or undertaking. An explicit promise need not be reduced to writing or discussed in exact terms expressing "if this then that." Rather, the quid pro quo can be proved by inference as long as an objective observe could surmise that an agreement exists and what the terms of that agreement require. See fn. 8.  The Court of Appeals found the evidence presented at trial supported the jury's finding of an explicit agreement.

Sittenfeld also challenged his conviction for constructive amendment of the indictment by the jury instructions. A constructive amendment is possible "where jury instructions differ from an indictment, even in the absence of varied evidence," such that the effect was to charge the jury on a "separate offense that was not listed in [the] indictment." United States v. Kuehne, 547 F.3d 667, 685 (6th Cir. 2008) (citing United States v. Combs, 369 F.3d 925 (6th Cir. 2004)). But if the instructions differ only in terms of the means for committing the same crime, a defendant must demonstrate prejudice by the jury instructions to prove constructive amendment of the indictment. 

Sittenfeld failed to preserve the issue of constructive amendment for review. The time to object and raise constructive amendment grounds was at the jury instruction conference, before agreeing to the langue the district court would use to instruct the jury. Raising the issue in a post-trial motion was too late. The agreement to the instruction's language did not prevent review under the invited error doctrine because the government also proposed the same language. The Court of Appeals felt this made both parties equally responsible for any potential error. 

The Court of Appeals found that the to-wit clause in Sittenfeld's indictment limited the charges of his conviction to the specific named undercover agent in that clause. The Court went on to state that the instructions were broadened, but no variance in evidence occurred. The Court of Appeals found that the government introduced evidence of up to three separate explicit agreements at trial that involved the named undercover agent in the to-wit clause. 

The ultimate question became whether it is plain error to allow broader jury instructions where the evidence introduced at trial points to multiple distinct corrupt counterparties or if this is a constructive amendment. Based on lack of precedent on this issue related to Hobbes Act extortion and bribery, the Court of Appeals held that no plain error occurred. 

Court Rejects Challenge ACCA Sentence Based on Challenge to Plea Agreement's Factual Basis

In United States v. Short, -- F.4th -- (6th Cir. 2025), the Court of Appeals upheld the district court's finding of guilty and sentencing the defendant under the Armed Career Criminal Act (ACCA). Short was indicted for being a felon in possession of a firearm. "The government then modified the indictment." Short, at page 2. The new indictment included allegations that on four separate occasions Short committed four separate crimes of violence.

 Short challenged his sentence under ACCA by arguing there was no factual basis to accept his plea. His argument relied on the joint factual basis presented to the district court. The joint factual basis did not mention any of his prior convictions for crimes of violence. However, the district court informed Short at his change of plea hearing that he faced the ACCA enhancement to his sentence. Under the ACCA enhancement, Short faced 15 years to life. Without it, he faced a maximum sentence of 10 years. Short acknowledged the ACCA enhancement and stood by his plea. 

At the time of the sentence, Sixth Circuit precedent permitted district courts to find separate occasions on its own. See, e.g., United States v. Williams, 39 F.4th 342, 351 (6th Cir. 2022). Not long after Short was sentenced, the Supreme Court of the United States ruled that separate occasions must be found by a jury or admitted by the defendant. Erlinger v. United States, 602 U.S. 821, 834–35 (2024).

At sentencing, the district court had the new indictment alleging the four separate prior crimes of violence, the presentence investigation report chronicling Short's criminal history, and Short's acknowledgment of the enhanced penalties at the plea colloquy to form the factual basis.

The Court of Appeals applied United States v. McCreary–Redd, 475 F.3d 718, reiterating that the written statement of factual basis is not the only way to establish factual basis.

Court Upholds Denial of Motion to Reduce Sentence

 In United States v. Davis-Malone, -- F.4th -- (6th Cir. 2025), the Sixth Circuit upheld the district court's denial of the defendant's motion to reduce his sentence based on retroactive guidelines changes after Amendment 821 took effect. The district court rejected the defendant's petition, which was supported by the government, to reduce his sentence using a form order and including only 3 sentences explaining the decision. The same judge presided over the sentencing and the motion to reduce sentence.

After the defendant twice sold oxycodone pills to an undercover agent while on probation for credit card fraud, the government obtained a warrant to search the defendant's car. "Inside the car, they found a handgun that he had made fully automatic and loaded with 23 rounds. The agents also uncovered over 100 oxycodone pills and 200 grams of marijuana hidden in a secret compartment." Davis-Malone, at page 2. The defendant pleaded guilty to possessing a firearm as a felon. His recommended sentencing guideline range was calculated to be 70 to 87 months. The defendant received a sentence of only 60 months--10 months below the guideline range. 

Davis-Malone filed a motion to reduce his sentence pursuant to Amendment 821. After applying the amendment, his sentencing range would be 57 to 71 months. The district court rejected the joint recommendation to reduce Davis-Malone's sentence to 57 months because the original sentence falls within the low end of the new guideline range. 

The Court of Appeals upheld this decision, in part, because the same judge that sentenced Davis-Malone ruled on the motion to reduce sentence. The Court of Appeals found that the district court adequately explained its reasoning to impose a below-guidelines sentence initially, the district court--in particular the same judge as before--does not need to conduct an exhaustive analysis of the same sentencing factors as before. The Court of Appeals followed United States v. Brim, 661 F. App’x 879 (6th Cir. 2016), where the underlying facts are materially similar.