Thursday, March 19, 2015

Light Traffic

We all know by now that the definition of violent crime or crime of violence is a complete mess. That is why SCOTUS is contemplating whether the residual clause is void for vagueness in Johnson v. US; we talked about it here and here.

The label of a prior conviction doesn't always tell you much about whether it fits into a particular category. For example, "Trafficking in Methamphetamine 14 Grams or More" -- you'd think that was a drug trafficking offense. But not so.

In an illegal reentry case, US v. Sarabia-Martinez, the Fifth Circuit held that this prior Florida conviction was not a drug trafficking offense, and it was plain error (no objection below) to rely on it to increase the base offense level by 16 levels under USSG 2L1.2. The Florida statute allowed for a trafficking conviction just for knowingly possessing more than 14 grams of meth.  The state apparently infers trafficking from the amount --  14 grams or more -- but that inference is not an element.

The Guideline trafficking definition includes possession with intent to distribute, but the Florida statute covers mere possession of a certain amount, which is outside the Guideline definition. "Sentencing enhancements are defined by federal, not state, law, and a state’s 'bulk theory of intent' cannot displace the guidelines’ text."

An important point: the PSR cited the conviction and described the facts from the arrest report. This does not satisfy the categorical approach. “[A] district court is not permitted to rely on a PSR’s characterization of a defendant’s prior offense for enhancement purposes.” And it was plain error to do so.

This is why it is necessary to dig deep into any prior conviction used to increase a sentence, to get the underlying records of prior convictions, and to research the underlying statute that was in effect at the time of the conviction. Labels can be misleading.

Wednesday, March 18, 2015

Why Innocent People Plead Guilty

We know this happens. Our clients opt for a certain sentence of probation rather than risk years in prison if convicted at trial. They take a shorter term rather than the danger of double-digit mandatory minimum sentences, or even mandatory life in prison. Or even accept life in prison rather than the threat of the death penalty. That is how the Alford  plea came to be -- pleading guilty not by admitting guilt, but by agreeing that the prosecution has evidence that would likely persuade a judge or jury of thier guilt beyond a reasonable doubt. Guilty but innocent.

They will plead guilty when they are innocent because of how the system is stacked. These are hard decisions sometimes, or not -- it can be the responsible choice for some of our clients.

Judge Jed Rakoff delivers a lecture.
Judge Rakoff
Not everyone has been willing to acknowledge this very real fact of our justice system. But Judge Jed Rakoff, federal district judge for the SDNY, calls out the idea of a trial-based justice system as a "mirage":  "In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone. . . . The Supreme Court’s suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: it is much more like a 'contract of adhesion' in which one party can effectively force its will on the other party."

Judge Rakoff's article in the New York Review of Books, Why Innocent People Plead Guilty, reviews the history of trials and pleas, the almost exclusive power of the prosecutions, and the reasons that innocent people plead guilty. He proposes some partial solutions, but none that would eliminate the increasing guilty-but-innocent convictions. In real numbers, "How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. The size of that range suggests the imperfection of the data; but let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit."

Former federal district judge, D.Mass, now Harvard law professor, Nancy Gertner, endorsed Judge Rakoff's position, but holds that he does not go far enough: "Indeed, there were times during my seventeen-year tenure on the federal bench in Massachusetts that inquiring of a defendant as to the voluntariness of his guilty plea felt like a Kabuki ritual. 'Has anyone coerced you to plead guilty,' I would ask, and I felt like adding, 'like thumbscrews or waterboarding? Anything less than that—a threatened tripling of your sentence should you go to trial, for example—doesn’t count.' . . . It is true too, in view of such threats of long terms in prison, that there is a strong possibility that the innocent may plead guilty. It may well be a rational calculation, given the penalty of going to trial, for there is clearly such a penalty."

While it is encouraging that the judiciary acknowledges the true nature of plea bargaining, that does little to balance the day-to-day practice. One way, though, that we may be able to bring light to the issue is with our clients' criminal history. Prior convictions may have been the product of guilty-but- innocent plea bargaining. The rape charge that carried serious prison penalties was pled down to some lesser offense and probation. These convictions will still count in criminal history, may still elevate the penalties, but they can be placed in context in sentencing argument. Challenging the nature and circumstances of a prior conviction may have a place in variance arguments, a reason that the sentencing court should lessen, or even erase, the weight of the prior conviction in evaluating our client's history and characteristics. Judge Rakoff and Judge Gertner's open acknowledgement and criticism of the practice give ground to these challenges. Arguments based on judicial criticism of the inequities in, as Judge Gertner calls it, the "cruel misnomer of plea bargaining" may be used to turn those words into action, in the form of a more reasonable sentence for our clients.

Tuesday, March 17, 2015

Fifty Shades of Gray (not Grey)

"Words are slippery things," begins the First Circuit decision in US v. Gray, issued March 13, 2015. In particular, the word "malice" may be hard to grasp.

This is the Court's clever synopsis: "Former flight attendant Nancy Gray, convicted of providing false information regarding a bomb threat on an airplane, seeks to convince us that she was denied a fundamentally fair trial when her jury was instructed that malice meant 'evil purpose or improper motive.' Because we find that the district court's definition just won't fly, we vacate Gray's conviction and remand this case for a new trial."

The evidence at trial was that Ms. Gray wanted to retaliate against either American Airlines or the ground crew by writing "bomb on board" in the lavatory. The statute Gray was charged under did not define malice; the district court instructed the jury that malice could include acting with "improper motive." The Court's  discussion is more about statutory construction and how to define an undefined statutory term -- whether by common-law or Congressional intent or analogy to similar statutes -- than about the definition of the particular word  "malice." On landing, though, the Court found "improper motive" as outside the definition of malice, that the error was not harmless, and reversed.

-- Melody, with thanks to Paige Nichols

Friday, March 13, 2015

Every Point Matters

When someone is committed to serve a sentence with the Bureau of Prisons, their designation is, in part, dependent on their security level. There are five Bureau of Prisons security levels: Minimum, Low, Medium, High and Administrative. An inmate’s security level primarily depends on how many security points they receive in their designation and custody classification. 

Like golf, the higher the score the worse the result. Sometimes 1 point can be the difference between someone being designated to a USP (high security) and not an FCI (medium). For instance, for men, a security score of 16-23 point usually places an inmate in a medium security facility. But add 1 point, and that same inmate can find himself in a USP. (See Bureau of Prisons Program Statement P5100.08, Chapter 1, page 2).

There are several relatively simple things counsel can do to better a client’s score. First, a person receives 2 points if he/she does not have a high school diploma or GED. If the diploma or GED is not “verified” in the presentence report, the person gets the points. Early on in a case, counsel should determine when and where their client obtained a diploma or GED. Then, get your client to sign a release so you can get the proof to provide during the presentence investigation, should it be necessary.

If someone does not have a diploma or GED but is enrolled in or making satisfactory progress in a GED program, then only 1, rather than 2, points are added to their classification score. Counsel should help an out of custody clients without a diploma or GED, in finding, and enrolling in a GED program. Counsel should advise their in-custody clients to start a GED program if one is available where there are in pretrial detention.

Inmates without a verified high school diploma or GED have two additional problems. First, the Bureau of Prisons will require that almost everyone without a verified high school diploma or GED to enroll in an adult literacy program for a minimum of 240 hours. (See Bureau of Prisons Legal Resource Guide, pages 19-20). Second, failure to participate and make satisfactory progress in the adult literacy program can prevent an inmate from receiving the maximum allowable good time credit. See 18 U.S.C. 3624(b)(1).

Next, outstanding criminal cases, detainers, or warrants can increase a person’s security score. Depending on the nature of the outstanding case, this could add between 1 to 7 security points. (See Program Statement P5100.08, Chapter 4, page 11.) The Bureau of Prisons may treat arrests listed in the PSR with an “unknown” disposition as pending, unresolved cases. 

Of course, these arrests are usually listed as “unknown” because probation could find no filed case. While most would assume this means no case was filed, not so the Bureau of Prisons. When the PSR lists the results of an arrest as “unknown” first ask the probation officer writing the report to change it to “no case filed.” If they are unwilling to do so, submit a written objection and put the government to its burden of proving there was a case filed. Be sure to explain to the court in the objection why this matters, or risk the court relying on Fed. R. Crim. P. 32(i)(3)(B) to avoid resolving the issue.

For more information, see Bureau of Prisons Program Statement P5100.08. Also check out the page on the Bureau of Prisons.

-- David Freund

Thursday, March 12, 2015

In addition to reading this blog every day, there are several other very helpful web sites and blogs that anyone interested in federal criminal defense should read:

This site provides up to date information for Federal Defender and CJA Attorney Training Programs and information on Supreme Court cert grants, opinion analysis, and other relevant news. Outlines for select topics in federal criminal defense, and materials from past programs are available for review and download.

The name says it all. Summaries of pending cases, pending petitions for cert, and real time coverage by live blog when order lists and/or opinions are released
The premier sentencing resource on the internet, by Professor Douglas A. Berman.
The eponymous blog by attorney John Wesley Hall summarizes significant opinions, articles and reports addressing the Fourth Amendment.

The Sentencing Commission’s web site includes not only the current and historical advisory sentencing guidelines, but Commission research and reports.

District Court opinions, memorandums and orders and other filings for civil and criminal cases. While not a complete listing of all opinions, this is a convenient way to keep up with what is happening in the Kansas City, Topeka and Wichita divisions of the Court.

PACER nationwide case locator (PACER account required)
Do you have a client or co-defendant with cases in more than one federal district? Don’t feel like individually searching the PACER site for every district to find this information? The PACER Case Locator is a national index for U.S. district, bankruptcy, and appellate courts. This system serves as a locator index for PACER. You may conduct nationwide searches to determine whether or not a party is involved in federal litigation in any district.

The Bureau of Prisons web site has a multitude of resources, including an inmate locator, where you can search by name or Bureau of Prisons register number. Once you locate an inmate, you follow the links to that facility, and access where he or she is housed and obtain visiting information, directions to the facility and other helpful information. The site also has a list and maps of Bureau of Prisons and contract facilities. Many policies and forms are also available for review and download.

-- David Freund

Wednesday, March 11, 2015

The Right to Jury Nullification

In State v. Smith-Parker, 340 P.3d 485 (Dec. 24, 2014), the Kansas Supreme Court recently held that the “beyond a reasonable doubt” jury instruction should leave room for jury nullification.  Of course, the concept of the beyond-a-reasonable-doubt standard is a federal constitutional issue, so the case presents a possible argument to make against the Tenth Circuit pattern instruction on the matter.

In reversing the defendant’s conviction, the Kansas Supreme Court agreed that a reasonable doubt instruction that told the jury that if it did not have a reasonable doubt, “you will enter a verdict of guilty” improperly stated the law.  The court held:

Although we have rejected a defense argument that a criminal jury should be instructed on its inherent power of nullification, the district judge’s instruction in this case went too far in the other direction. It essentially forbade the jury from exercising its power of nullification.  Both the wording of the instruction at issue in Lovelace—“must”—and the wording at issue here—“will”—fly too close to the sun of directing a verdict for the State. A judge cannot compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt.

Id. at 507. 

The Tenth Circuit instruction includes language that the Kansas Supreme Court rejected in Smith-Parker.  In relevant part, Tenth Circuit Pattern Instruction 1.05 states:

The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must find the defendant not guilty.

(Emphasis added).  Thus, a jury in federal court will not be advised of this (subtle) right to jury nullification that was so important to the Kansas Supreme Court.  So Smith-Parker can be used as persuasive authority that the Tenth Circuit pattern instruction is legally erroneous.

Although we often talk about “circuit splits” in federal court, this case presents a split of authority between a state court of last resort and the federal circuit court that oversees that state. And there are undoubtedly more differences of opinion on this issue.  It is also the type of fundamental issue that may interest the U.S. Supreme Court. 

  -- Carl Folsom 

Tuesday, March 10, 2015

No Soup for You

soup nazi photo: soup nazi soup.jpg

Last summer, Missouri finally rolled back a draconian law that targeted the poor. In the past, people with felony drug convictions were banned for life from receiving Supplemental Nutrition Assistance Program, also known as food stamps. A murder conviction or child sex offense on your record, that's not disqualifying. But not a drug felony -- no soup for you. Ever, not just for one year.

The new law still has restrictions. Less than three felony drug convictions. And the recipient must stay clean. But at least the lifetime ban is gone.

That is old news, sort of, but point here (I'm getting to it) is that often there are ramifications that go far beyond prison or supervision. Sometimes it is called invisible punishment. Employment, immigration, housing, food stamps, and much more. It is a long list. These consequences weigh much more heavily on the poor.

Padilla v. Kentucky tells us that we must inform our clients about the potential collateral consequences of a plea or sentence, such as deportation. But beyond the obvious fallout, it can be hard to identify or predict the effect of a felony conviction or incarceration. For example, it would have been good to know that pleading to a gun count rather than a drug count would save your client from a lifetime ban on food stamps.

To this end, the Collateral Consequences Resource Center has a blog dedicated to "Collateral Consequences of Criminal Conviction and Restoration of Rights: News, Commentary, and Tools." It is an excellent resource. This week, for example, the post noted that, "In a remarkable, unanimous decision, the California Supreme Court held on March 2, 2015 that residence restrictions for sex offenders on parole were unconstitutional as applied." Great decision, but it reminds us that we need to advise our clients convicted of sex offenses about the SORNA requirements and the other restrictions, such as residence and work. Punishment often lasts far beyond the prison term, especially for the poor.

-- Melody