UNITED STATES OF AMERICA, Plaintiff-Appellee, v. STEVE ALLEN PRITCHARD, Defendant-Appellant.
No. 18-6210
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
July 7, 2020
20a0203p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Appeal from the United States District Court for the Western District of Kentucky at Bowling Green. No. 1:16-cr-00028-1—Gregory N. Stivers, District Judge. Argued: October 23, 2019.
COUNSEL
ARGUED: Frank W. Heft, Jr., OFFICE OF THE FEDERAL DEFENDER, Louisville, Kentucky, for Appellant. Terry M. Cushing, UNITED STATES ATTORNEY‘S OFFICE, Louisville, Kentucky, for Appellee. ON BRIEF: Frank W. Heft, Jr., Donald J. Meier, OFFICE OF THE FEDERAL DEFENDER, Louisville, Kentucky, for Appellant. Monica Wheatley, UNITED STATES ATTORNEY‘S OFFICE, Louisville, Kentucky, for Appellee.
NALBANDIAN, J., delivered the opinion of the court in which CLAY and THAPAR, JJ., joined. CLAY, J. (pp. 22–24), delivered a separate concurring opinion.
NALBANDIAN, Circuit Judge. Some men just want to watch the world burn. Others start fires to collect insurance money. Steve Pritchard is the latter. But after playing with fire several times, Pritchard‘s penchant for profiting from arson took a deadly turn. Instead of only damaging property, a fire started by Pritchard in June 2011 led to firefighter Charles Sparks‘s death. While responding to the fire, Sparks suffered a fatal heart attack. Although Pritchard could have supposed that a firefighter would respond to the blaze, he had no reason to suspect that Charles Sparks would arrive on the scene, bringing with him a history of coronary disease and spotty use of his prescription medication. At issue is whether Pritchard caused Sparks‘s death within the meaning of the federal arson statute,
Pritchard‘s appeal turns on first principles of causation. The common law typically permits liability only when the perpetrator acts as both the but-for and the legal cause of the harm. And that distinction often matters. Every fledgling law student knows that “a kingdom might be lost ‘all for the want of a horseshoe nail,‘” see Massachusetts v. EPA, 549 U.S. 497, 546 (2007) (Roberts, C.J., dissenting), but we still don‘t hold the blacksmith responsible for the defeat despite his faulty craftmanship‘s role as the but-for cause. For that reason, laws that invoke proximate causation generally impose liability when the harm was foreseeable. Under
This case involves a fire, a firefighter, and a fraudster. First, the fire. At 3:05 AM on June 30, 2011, a 911 caller reported a fire at the Pritchard residence. Eleven minutes later, firefighters, including Assistant Chief Charles Sparks, arrived on the scene. These firefighters found the house engulfed in “[a] lot of fire, a lot of flames.” (R. 145, Trial Tr. Vol. 2 at PageID# 1055.) During the firefighting, Sparks lost consciousness. Personnel at the scene administered CPR to Sparks and called for an ambulance. Although the emergency workers tried to revive Sparks, who was not breathing and did not have a pulse, he never regained consciousness. Eight days later, Sparks died after being taken off life support.
Before fighting the fire on June 30, 2011, Sparks suffered from various medical ailments. In 2005, Sparks had a heart attack that required inserting a stint in his coronary artery. Sparks also suffered from coronary disease, hypertension, and diabetes—all of which are risk factors for a heart attack. Around the time of his death, Sparks had not been taking his prescribed heart medication or insulin to treat his diabetes.
Brandi Pritchard, Steve Pritchard‘s wife, clocked into work at 3:34 AM on June 30, 2011. She worked about forty-five minutes away from her house, meaning she left for work around 2:45 AM. Around 7:00 AM that morning, Brandi received a call informing her that her home was on fire.
Now for the fraud. To Brandi‘s purported surprise, Pritchard decided to drive her to work that morning, telling her that it “would be a good morning to go ahead and start . . . this fire in this house[.]” (R. 146, Trial Tr. Vol. 3 at PageID# 1352.) On the way to work, Pritchard proclaimed, “I did it[,]” referring to the fire. (Id. at 1353.) Pritchard had arranged for Brandi‘s children and his dog to be out of the house that morning. Later, Brandi‘s children would testify that Pritchard showed them photographs of the fire he took from his phone and that Pritchard implied he started the fire. And Dale Clark, a longtime acquaintance of Pritchard and Brandi, also testified that Pritchard insinuated that he started the fire with Brandi‘s help. Finally, Sherry Waggoner, a friend of the Pritchards, recounted overhearing the couple argue about the fire. She testified that Pritchard claimed to be “the genius in the project [and] . . . the one that masterplanned it.” (R. 145, Trial Tr. Vol. 2 at PageID# 1143.) Sherry‘s husband, Robbie Waggoner, confirmed this conversation and that Pritchard took credit for the arson.
Later that day, Pritchard picked Brandi up from work and instructed her on “what [she] needed to say when [they] got [home].” (R. 146, Trial Tr. Vol. 3 at PageID# 1356.) Pritchard wanted Brandi to tell investigators that he had spent the night in Louisville. And that‘s the same story he gave to the police. Yet Pritchard‘s alibi did not withstand scrutiny. Cell tower records revealed that Pritchard had not been in Louisville on the night of the fire. The government obtained Pritchard‘s cell-site location information (CSLI) without a warrant in July 2015, relying on the warrant exception in the Stored Communications Act (SCA).
June 30 wasn‘t the first time Brandi heard about Pritchard‘s plot. Brandi bought a $50,000 insurance policy for the house six days before the fire. So when Pritchard learned about the insurance policy, he remarked about “how easy it would be to burn the house down and get the money for it.” (Id. at 1335.) At first, Brandi balked at Pritchard‘s plan, finding it “ludicrous[.]” (Id. at 1343.) To persuade Brandi, Pritchard recounted previous fires
After the fire, Brandi collected on her insurance policy. In the ensuing investigation of the fire, carried out by Kentucky State Police and the FBI, Pritchard pressured Brandi to lie to cover up the arson. When he became worried about Brandi‘s resolve, Pritchard resorted to threats of violence to coerce Brandi not to confess. In response, Brandi obtained multiple protective orders against Pritchard. Pritchard‘s threats continued for years; after the FBI interviewed Pritchard in 2014, he broke into Brandi‘s house and threatened to harm her and her children if she told the truth about the arson. Brandi eventually confessed to her role in the arson, the insurance fraud, and the cover up.
Following the investigation, a federal grand jury charged Pritchard and Brandi with Malicious Destruction of Property by Fire, a violation of
At Pritchard‘s trial, Dr. Thomas Hales, a physician for the National Institute for Occupational Safety and Health, testified about risk factors relevant to Sparks‘s death. Hales concluded that firefighting “triggered” Sparks‘s fatal heart attack. (Id. at 1313.) He also testified that firefighting requires “a lot of heavy physical exertion” and recounted how studies show a link between strenuous physical activity and cardiac malfunction. (Id. at 1258–64.) But he could not conclude, given Sparks‘s history, that Sparks would not have had a heart attack independent of the fire. Dr. Divyesh Bhakta, who treated Sparks after his heart attack, testified that Sparks‘s untreated diabetes and failure to take his heart medicine produced “a number of risk factors[.]” (R. 134, Trial Tr. Vol. 5 at PageID# 728–40.) He also could not conclude whether the fire, and not these risk factors, caused Sparks‘s heart attack. After hearing this evidence, the jury found Pritchard guilty of arson causing death.
Pritchard‘s counsel made many objections before, during, and after trial. Before the trial, he filed an unsuccessful motion to exclude evidence about Pritchard‘s previous arsons and the Emergency Protective Orders (EPOs) obtained by Brandi. During trial, he objected to the court‘s refusal to give his proposed jury instructions about proximate cause. He also argued that the district court should not have admitted CSLI seized by the government because the officers lacked a valid warrant for the search. So Pritchard moved to suppress, contending that admitting the cell phone records violated the exclusionary rule. In addition, Pritchard‘s counsel challenged the relevancy of testimony given by the government‘s expert witness, David West, about the characteristics and motives shared by arsonists. And during sentencing, Pritchard‘s counsel argued against applying a two-level leadership enhancement to Pritchard‘s sentence. The lower court overruled these challenges.
In sum, Pritchard received a sentence of 360 months for arson causing death and a concurrent 240-month term for mail fraud. Pritchard now appeals his conviction and sentence.
II.
An arsonist started a fire to collect insurance money. Then a firefighter lost his life putting that fire out. Before us is
As we must, we begin with the statute‘s text. See Binno v. Am. Bar Ass‘n, 826 F.3d 338, 346 (6th Cir. 2016). Section
Courts traditionally answer questions of causation by looking to the common law. See United States v. Hayes, 589 F.2d 811, 821 (5th Cir. 1979) (“We adhere to the accepted practice among federal courts in construing a federal criminal statute where specific terms are left undefined. We give those terms their common law meaning.” (citing United States v. Turley, 352 U.S. 407, 430 (1957))). Addressing common law causation principles, the Supreme Court remarked: “The law has long considered causation a hybrid concept, consisting of two constituent parts: actual cause and legal cause.” Burrage v. United States, 571 U.S. 204, 210 (2014) (citing H. Hart & A. Honore, Causation in the Law 104 (1959)). As with
limitation which the courts have placed upon the actor‘s responsibility for the consequences of the actor‘s conduct . . . [because] the causes of an event go back to the dawn of human events and beyond. But any attempt to impose
responsibility upon such a basis would result in infinite liability for all wrongful acts.
W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 41, at 264 (5th ed. 1984).
Setting a necessary limit for imposing liability, this Circuit finds proximate causation when a person suffers harm from events that “are foreseeable and naturally result from [the defendant]‘s criminal conduct[.]” Martinez, 588 F.3d at 319 (alteration in original) (quoting Guillette, 547 F.2d at 749). In sum:
A fundamental principle of criminal law is that a person is held responsible for all consequences proximately caused by his criminal conduct. Thus, where events are foreseeable and naturally result from one‘s criminal conduct, the chain of legal causation is considered unbroken and the perpetrator is held criminally responsible for the resulting harm.
United States v. Wiegand, No. 93-1735, 1994 WL 714347, at *2–3 (6th Cir. Dec. 22, 1994) (quoting Hayes, 589 F.2d at 821).
Applying that proximate causation principle, this Circuit held that “[i]njury to a firefighter is a foreseeable result of arson[.]” Id. at *3. But that applied to burns suffered during firefighting. Id. at *1. Pritchard rightly observes that the facts here are different. Rather than perishing from typical injuries sustained during firefighting, such as burns and trauma from falling debris, Charles Sparks died from a heart attack. And evidence at trial showed that Sparks had a pre-existing heart condition, along with other maladies, that he left untreated. That means, according to Pritchard, Sparks‘s failure to treat his condition and decision to keep fighting fires with a diseased heart broke the chain of
Drawing on that observation, Pritchard contends that insufficient evidence supports his conviction because the government did not show enough causation between Pritchard‘s arson and Sparks‘s heart attack. First, he contends that his actions needed to be “the cause of death,” and not simply “a cause of death.” (Appellant‘s Br. at 20.) But Pritchard‘s theory that there can only be one cause of death sufficient for imposing liability flouts our precedent. See Hausrath v. N.Y. Cent. R.R. Co., 401 F.2d 634, 637 (6th Cir. 1968) (“There may, of course, be more than one proximate cause.“). Still, Pritchard argues that Sparks‘s “heart attack could have occurred at home due to diabetes or coronary artery disease” and the arson only acted as a “contributingfactor” that didn‘t set the events of Sparks‘s death in motion. (Appellant‘s Br. at 22–23.) Rephrased, Pritchard tells us that a firefighter dying from a heart attack wasn‘t foreseeable when he started the fire and there is not an unbroken causal link between starting the fire and Sparks‘s death. And we agree that this case isn‘t as clear cut as Wiegand, where we held an arsonist liable for causing the burns suffered by a firefighter because that injury was foreseeable and the causal chain between the arson and the burns appeared unbroken. 1994 WL 714347, at *1–3.
Still, a defendant raising a sufficiency of the evidence claim faces a high burden. That‘s because a court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Porter, 886 F.3d 562, 565 (6th Cir. 2018) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). It‘s true that Sparks suffered from serious ailments, including diabetes and blocked arteries, and evidence showed that Sparks had not been taking his prescribed heart medication or insulin for some time. So Pritchard contends that the presence of these “other factors that could have been the cause” of Sparks‘s heart attack means the fire could not have proximately caused Sparks‘s death. (Appellant‘s Br. at 22.) But in Martinez, we upheld a finding of proximate cause when a doctor‘s improper treatment contributed to a patient‘s fatal overdose. 588 F.3d at 319–21. There, we denied a similar insufficiency of the evidence claim. The jury found prescribing over the counter drugs and performing nerve-block injections proximately caused the patient‘s fatal overdose, even though the patient had used narcotic drugs. Id. at 321–22. And we found those facts sufficient to affirm a conviction.
Martinez‘s reasoning applies here. Even though Pritchard offered evidence that Sparks‘s pre-existing medical condition led to his death, the jury found an unbroken chain of causation between the fire and Sparks‘s heart attack. Just as we did not disturb a jury‘s finding that the patient‘s “actions as an addict cannot be said to break the chain of proximate causation[,]” we do not disturb the jury‘s conclusion that Sparks‘s medical ailments did not sever the causal link between the fire and his death. Id. at 322. After all, the government entered evidence showing that firefighting stresses the heart, meaning that heart attacks can be caused by responding to arsons just like severe burns. And to show proximate cause, the government only needed toenter sufficient evidence that Sparks‘s death was a foreseeable and natural result of Pritchard‘s actions. Even though a heart attack might not be the most obvious injury for a firefighter to suffer, the government entered evidence
Despite listing proximate and direct causes as distinct terms,
III.
Pritchard not only challenges his conviction by offering a causation theory, but also applies that principle to the jury instructions given over
At trial, the judge gave this instruction to the jury:
The death of Charles Sparks resulted from the Defendant‘s conduct if the Defendant‘s conduct was a direct and proximate cause of Charles Sparks’ death. The Defendant‘s conduct was a direct and proximate cause of Charles Sparks‘death if it was a substantial factor in causing him to die, and he would not have died except for the Defendant‘s conduct.
(R. 101, Jury Instr. at PageID# 364.) Pritchard alleges that the trial court erred by rejecting his proposed instructions under which he needed to be “the direct and proximate cause” of Sparks‘s death. (Appellant‘s Br. at 25.) So, according to Pritchard, the jury convicted him under an overly permissive causation standard. That‘s doubly true, Pritchard tells us, because the instruction permitted guilt for being a substantial factor in Sparks‘s death. This alleged mistake made it harder for Pritchard to argue that guilt could only be found under
Because Pritchard challenges the district court‘s “failure to give the requested instruction[,]” we review for abuse of discretion. (Appellant‘s Br. at 25–26.) And we only find that a district court abused its discretion over jury instructions
denying Pritchard‘s proposed instruction in favor of language more faithful to the statute. So Pritchard‘s challenge to the jury instruction falls short.
IV.
During trial, the district court admitted evidence that (1) Pritchard set four previous fires; (2) his wife, Brandi, obtained Emergency Protective Orders (EPOs) against him; and (3) opined about what motivates arsonists. Pritchard believes these admissions violated the Federal Rules of Evidence. So he requests a new trial where the jury would not be exposed to this allegedly inadmissible and prejudicial evidence.
We typically review challenges to evidentiary admissibility for abuse of discretion. See United States v. Mack, 258 F.3d 548, 553 n.1 (6th Cir. 2001) (“[W]e conclude that the appropriate standard of review for the admissibility of evidence under
[W]e first review for clear error the district court‘s factual determination
that the “other . . . acts” occurred. Second, we examine de novo the district court‘s legal determination that the evidence was admissible for a legitimate purpose. Finally, we review for abuse of discretion the district court‘s determination that the probative value of the other acts evidence is not substantially outweighed by its unfairly prejudicial effect.
United States v. Merriweather, 78 F.3d 1070, 1074 (6th Cir. 1996) (second alteration in original). Although previous rulings from this Court suggest “an intra-circuit split” over the standard of review for
A.
Pritchard argues that the district court erred by admitting evidence about previous fires he started because that evidence only shows a propensity for criminality. And that legal proposition is true: The government cannot introduce past crimes as evidence of the defendant‘s propensity to commit a crime at issue. United States v. Clay, 667 F.3d 689, 693–94 (6th Cir. 2012). That‘s because showing propensity to commit a crime, either as to a specific offense or in general, unfairly prejudices the jury over the defendant‘s guilt. See Old Chief v. United States, 519 U.S. 172, 180–81 (1997) (“[I]mproper grounds [for admitting evidence] certainly include . . . generalizing a defendant‘s earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged (or, worse, as calling for preventive conviction even if he should happen to be innocent momentarily).“).
That said,
Pritchard‘s previous arsons played a role in his plan to set fire to his wife‘s house. To convince Brandi to join his plot, he told her about his previous arsons. So Pritchard used his prior bad acts to influence Brandi. This scenario is much like United States v. Holley, 57 F. App‘x 639 (6th Cir. 2003)(order), where the government introduced evidence of the defendant‘s past arson in proving a second arson. Just like Pritchard, the defendant in Holley bragged about his previous arson to “recruit” a co-arsonist. Id. at 641. For that reason, we found that evidence of a past arson fits into the
That gives us enough to perform the Merriweather test. First, we review the district court‘s conclusion that the acts occurred for clear error. Plenty of testimony supports Pritchard committing the previous arsons and the record lacks evidence
B.
As for the three EPOs obtained by Brandi, Pritchard contends that they are irrelevant and thus inadmissible under
Yet this argument ignores why Brandi might have sought the EPOs. Because Brandi knew the truth about the fire, Pritchard allegedly threatened her throughout the investigation to prevent her from confessing. And all of the EPOs occurred during a period where Pritchard had been threatening Brandi, as well as her children, to prevent her confession. The prosecution introduced the EPOs to show that Brandi was afraid of Pritchard and to support her testimony that Pritchard used threats of violence to coerce her into lying to investigators. So the EPOs make it more likely that Pritchard committed the crime because they corroborate his coverup efforts. Considering “[t]his Circuit applies an ‘extremely liberal’ standard for relevancy[,]” the EPOs are relevant because they support facts pointing to Pritchard‘s guilt. United States v. Ramer, 883 F.3d 659, 681 (6th Cir. 2018) (quoting United States v. Collins, 799 F.3d 554, 578 (6th Cir. 2015)). Thus, we find that admitting the EPOs didn‘t violate
C.
Finally, Pritchard‘s argues that the government improperly introduced David West‘s expert testimony at trial about what motivates arsonists. West testified that arsonists derive excitement and gratification from setting fires and often watch the fire or take pictures of the fire‘s aftermath as a memento. He also suggested
Again, Pritchard claims the district court violated
The government responds that this Circuit already found expert testimony about arsonists’ general behavior admissible in United States v. Rayborn, 495 F.3d 328, 334 (6th Cir. 2007). But that‘s not the entire truth. In Rayborn, the expert testified about how arsonists tend to set fires—for example they “commonly use paper as an accelerant” and “typically” pour flammable liquid in certain patterns. Id. So Rayborn does not settle whether testimony about the intrinsic motivation of arsonists is relevant under
West‘s testimony here meets that minimal standard. He explained that, based on his expert knowledge, taking pictures of a fire fits the profile of an arsonist. So Pritchard photographing the fire and showing those images off to Brandi‘s children made it more likely that he started the fire. This distinguishes Pritchard‘s case from United States v. Taylor, 814 F.3d 340, 362 (6th Cir. 2016), abrogated on other grounds by United States v. Richardson, 948 F.3d 733 (6th Cir. 2020), where we found that statistics and “generalized facts that could be said to apply to every . . . offender” were not relevant to the specific defendant‘s case. Because West‘s testimony ties to specific facts in the record supporting Pritchard‘s guilt, that testimony is both relevant and probative. Thus, the district court committed no error by admitting West‘s testimony.
One last point: Even if admitting the above evidence violated the Federal Rules of Evidence, Pritchard would still need to show the district court‘s error wasn‘t harmless. Hardy, 643 F.3d at 153. But when the “record evidence of guilt is overwhelming” independent of the allegedly offending evidence, admitting that evidence is harmless and does not permit vacating a conviction. Id. Given Brandi‘s testimony, testimony from neutral parties, and Pritchard‘s faulty alibi, the jury had enough evidence to convict Pritchard without relying on his prior bad acts, the EPOs, or West‘s expert testimony. So any error in admitting that evidence would be harmless.
V.
Relying on Carpenter v. United States, 138 S. Ct. 2206 (2018), Pritchard argues that the district court should have suppressed evidence of his cell-site location between June 1, 2011 and July 31, 2011. The government, without a warrant, obtained CSLI showing the whereabouts of Pritchard‘s cell phone after receiving a court order in 2015. This information disproved Pritchard‘s alibi of being in Louisville when the fire started. Fourteen days before Pritchard‘s trial began, the Supreme Court decided Carpenter. There, the Court
It‘s black letter law that good-faith reliance on a statutory warrant exception can excuse an officer‘s failure to obtain an otherwise-necessary warrant. See United States v. Parrish, 942 F.3d 289, 293 (6th Cir. 2019) (“[C]ourts will not exclude evidence from trial that was seized ‘by officers reasonably relying on a warrant issued by a detached and neutral magistrate.‘” (quoting United States v. Leon, 468 U.S. 897, 913 (1984))). That means as long as an officer relies on a statute in good faith to perform a warrantless search, the fruits of that search are admissible at trial. This is true even if that statute is later found unconstitutional. United States v. Buford, 632 F.3d 264, 271 (6th Cir. 2011) (“[T]he Supreme Court has held suppression is not an available remedy when police officers conducted a search in good faith reliance on some higher authority, such as a warrant or a statute, even if the warrant or statute were later held invalid or unconstitutional (the ‘good faith exception‘).” (quoting United States v. Gonzalez, 598 F.3d 1095, 1101 (9th Cir. 2010) (Bea, J. dissenting from the denial of rehearing en banc))). But this standard does not preclude all challenges to warrantless searches—the exclusionary rule bars evidence seized when an officer did not rely on a statute in good faith to execute the offendingsearch or seizure. Indeed, officers do not rely on a statute in good faith “if [the statute‘s] provisions are such that a reasonable officer should have known that the statute was unconstitutional.” Krull, 480 U.S. at 355.
Pritchard claims that our precedent would not have permitted an officer to conduct warrantless CSLI searches under the SCA when the government seized his CSLI in 2015. He relies on United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010), where this Circuit found that a warrantless seizure of private emails under the SCA violated the Fourth Amendment. In that case, we applied the good-faith exception, but explained that “after today‘s decision,” our “good-faith calculus has changed, and a reasonable officer may no longer assume that the Constitution permits warrantless searches of private emails.” Id. at 289 n.17. Pritchard argues that this holding means that the government could not have relied on the SCA in good faith to collect his CSLI data post-Warshak.
The government disagrees that Warshak prohibited good-faith reliance on the SCA‘s warrant exception, at least for CSLI. It counters Pritchard‘s reasoning by citing United States v. Pembrook, 876 F.3d 812, 823 (6th Cir. 2017), vacated on other grounds by Calhoun v. United States, 139 S. Ct. 137 (2018), where this Circuit denied the defendants’ motion to suppress CSLI seized in 2014 without a warrant. Rejecting the defendants’ Fourth Amendment claim, we found that no precedent, binding or otherwise, established the need for a warrant to seize CSLI under the SCA. Id. So, as of
That takes us back to the controlling issue: How did the law appear to a reasonable officer when the government seized Pritchard‘s CSLI in 2015? In Pembrook, this Court scoured caselaw both within and outside our Circuit and determined that, as of 2014, criminal defendants had no Fourth Amendment protections against warrantless seizures of CSLI. Id. Absent evidence that our Fourth Amendment precedent changed until the 2018 Carpenter decision, it would be strange to locate such a protection in 2015. Surely if no caselaw or statutory language existed to negate an officer‘s good-faith belief that warrantless CSLI seizures were permissible in 2014, then a Fourth Amendment sea change impacting a 2015 CSLI seizure would not have gone undetected or unannounced.
Proving this point, Pritchard doesn‘t argue that any opinion or legislation altered Pembrook. Instead, he claims that Warshak preceded Pembrook and gave a contradictory holding. Thus, he argues that Pembrook was never good law because it violated this Circuit‘s precedent when issued. But this ignores the major difference between Warshak and Pembrook: Warshak concerned the seizure of private emails while Pembrook spoke directly about CSLI.3 Private written communications have long enjoyed protection from unreasonable searches and seizures under the Fourth Amendment. See Carpenter, 138 S. Ct. at 2264 (Gorsuch, J., dissenting) (“Under its plain terms, the [Fourth] Amendment grants you the right to invoke its guarantees whenever one of your protected things (your person, your house, your papers, or your effects) is unreasonably searched or seized. Period.“). But until Carpenter, courts didn‘t routinely grant similar protection to data, held by a third party, revealing a person‘s location, such as CSLI. So in a post-Pembrook, pre-Carpenter world, reasonable officers had every reason to believe in the constitutionality of collecting CSLI without a warrant under the SCA.
What‘s more, this Circuit already found that warrantless CSLI searches under the SCA performed before Carpenter stemmed from good-faith reliance on the SCA. United States v. Carpenter, 926 F.3d 313, 318 (6th Cir. 2019) (“The Government‘s acquisition of Carpenter‘s CSLI violated the Fourth Amendment. The district court nevertheless properly denied suppression because the FBI agents relied in good faith on the SCA when they obtained the data.” (emphasis added)). This ruling concerns warrantless CSLI collection post-Warshak, meaning it covers the period at issue in Pritchard‘s case. Id. at 318. As a result, pre-Carpenter reliance on the SCA for warrantless CSLI collection doesn‘t permit the sort of claim Pritchard raises.
district court‘s denial of Pritchard‘s motion to suppress CSLI evidence showing his location during the arson.
VI.
Apart from his conviction, Pritchard challenges the two-level sentencing enhancement he received under
the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
U.S.S.G. § 3B1.1 cmt. n.4. Pritchard claims the district court erred by applying
Disputing the
But as much as Pritchard wants to paint Brandi as a co-equal arsonist or an independent actor outside his control, that simply isn‘t what the record shows. Pritchard came up with the idea for arson, presented it to Brandi for recruitment purposes, tried to sway her when she resisted, bragged about being a “genius” at arson-based insurance fraud, planned the logistics of the fire, directed the coverup, and threatened domestic violence to execute the coverup. Thus, Brandi acted under Pritchard‘s control while (1) planning the fire, (2) committing the coverup, and (3) submitting a fraudulent insurance claim. So we uphold the district court‘s decision to apply a
VII.
For the above reasons, we AFFIRM Pritchard‘s conviction and sentence.
CONCURRING
CLAY, Circuit Judge, concurring. I concur in the majority‘s judgment but write separately to note my disagreement
At bottom, the majority‘s interpretation of “direct . . . result” is simply incorrect. “Direct cause” is not another term for “actual cause,” but is instead a synonym for “proximate cause.” See Cause, Black‘s Law Dictionary (11th ed. 2019). While the majority invokes common law to find otherwise, the Supreme Court has clearly explained that that “among the many shapes [that proximate cause] took at common law was a demand for some direct relation between the injury asserted and the injurious conduct alleged.” Holmes v. Sec. Inv‘r Prot. Corp., 503 U.S. 258, 268 (1992) (citation omitted); accord, e.g., Paroline v. United States, 572 U.S. 434, 444 (2014); Hemi Grp., LLC v. City of New York, 559 U.S. 1, 9 (2010); Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 654 (2008); see also Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or., 515 U.S. 687, 732–33 (Scalia, J., dissenting) (“In fact ‘proximate’ causation simply means ‘direct’ causation.“). We have interpreted “proximate cause” similarly. See, e.g., Lopez Sosa v. Barr, 780 F. App‘x 307, 309 (6th Cir. 2019) (interpreting asylum statute and concluding that, “to use the tools of proximate causation, the statute requires a ‘direct relationship’ between the social group and the harm” (quoting Hemi Grp., LLC, 559 U.S. at 10)); Crosby v. Twitter, Inc., 921 F.3d 617, 624 (6th Cir. 2019) (agreeing that “proximate cause requires some ‘directness‘between the tortious conduct and the injury“). The legislative history of
The majority acknowledges that “some formulations of proximate cause include a concept of directness within them,” but reasons that Congress must have meant actual causation because proximate and actual causation typically go hand in hand and because the rule against surplusage suggests that “direct . . . result” must mean something different than “proximate result.” Neither point justifies its interpretation.
First, far from ensuring that actual and proximate causation remain paired, the majority‘s proposed interpretation does just the opposite. In the central case cited by the majority, Burrage v. United States, 571 U.S. 204, 210 (2014), the Supreme Court explained that “[w]hen a crime requires ‘not merely conduct but also a specified result of conduct,’ a defendant generally may not be convicted unless his conduct is ‘both (1) the actual cause, and (2) the “legal” cause (often
Second, while courts should interpret statutes to avoid surplusage, that rule does not compel the majority‘s conclusion here. As the majority acknowledges, “proximate cause” is an imprecise concept. Accordingly, I understand the addition of “direct . . . result” as simply clarifying what “proximate result” means by focusing courts’ inquiry on the issue of remoteness. Where a phrase is otherwise unclear, adding an explanatory phrase is not redundant.
The majority‘s analysis is not simply unjustified—it runs counter to binding case law. “Especially in the interpretation of a criminal statute subject to the rule of lenity, we cannot give the text a meaning that is different from its ordinary, accepted meaning, and that disfavors the defendant.” Burrage, 571 U.S. at 216 (citation omitted). As discussed, the most common meaning of “direct cause” is similar to that of “proximate cause.” To my eyes,
Finally, and perhaps most importantly, the majority‘s interpretation of this portion of the statute is not necessary to our ultimate resolution of this appeal. Nor did the parties present this matter for our consideration or provide any briefing to inform our analysis. Under any possible interpretation of
Notes
Proximate or direct cause exists where the acts of the Defendant . . . in a natural and continuous sequence directly produces the deaths and without which they would not have occurred. The Defendant is not responsible . . . if his alleged [criminal act] is a remote cause and
J.A. Volume II at 807–08, Martinez, 588 F.3d 301 (Nos. 06-3882, 06-4206). Although this jury instruction applies to a statute with different language thannot a proximate or direct cause of the deaths. A cause or condition is remote when the result could not have been reasonably foreseen or anticipated as being the likely cause of the deaths. The causal connection is broken when another‘s act, which could not have been reasonably foreseen and is fully independent of the Defendant‘s alleged [criminal act], intervenes and completely breaks the effect of Defendant‘s conduct and such other acts become the proximate cause of the deaths.