Sunday, November 23, 2014


From First Assistant Federal Defender Kirk Redmond:

The latest installment in a series of moral panics over drugs in America is methamphetamine. Meth is postured as the new crack, pilloried as the most dangerous drug in existence. Not so. Understated advertisement campaigns notwithstanding, methamphetamine is no more insidious than cocaine, heroin, or alcohol.
Scholars have begun to deconstruct the myth of a methamphetamine epidemic. Years ago, a letter from the medical community exploded the notion that a meth addiction is more difficult to treat than an addiction to other drugs. The Sentencing Project has stripped away media hyperbole about a spike in meth use. And most recently, a study from Columbia University has condemned the hyper-caffeinated claims about the harm wrought by methamphetamine, comparing the media hype to what happened with crack cocaine.
Judges are paying attention. In a future post, we will talk about the meth purity guidelines.

Saturday, November 22, 2014

Immigration Reform and Other Collateral Consequences

You've likely heard about the President's new initiative on Immigration Reform, coined an act of prosecutorial discretion. The Fifth Circuit blog has compiled a list of resources that explain the new policies. It is possible that these new policies could affect a client or two. Go here to read more.
Also, the Tenth Circuit blog recently posted a blurb about the Collateral Consequences Resource Center. Go here to check it out. We could all use a reference for collateral consequences.
More on collateral consequences, and particularly sex offender registration. In this decision, the Ninth Circuit affirmed a preliminary injunction issued against the enforcement of California's latest sex offender registration requirements. The requirements focused on the Internet, and the Court held that the requirements likely violated the First Amendment. Hence the preliminary injunction.
The case is related to recent litigation on similar conditions of supervised release, although the Court made clear that the requirements at issue were aimed at individuals who had served the entirety of their prison sentences (including terms of supervision). Interestingly, the Court drew a parallel between supervised release and parole. Yet, in doing so, it sent inconsistent messages, at one point noting that defendants are paroled before the completion of their sentences (correct), and at another suggesting that parole is imposed in addition to imprisonment (incorrect). Putting aside this confusion, the discussion is one that challenges basic notions of a sentence in federal court. Think about this the next time you appear for sentencing: the sentence imposed is imprisonment plus supervised release. So, if you ask for 5 years' imprisonment and 2 years' supervised release, you are asking for a 7-year sentence. And this frame of mind is particularly important in light of the restrictive conditions imposed by district courts and essentially rubber-stamped by the Tenth Circuit.
One last point: the diverging opinions coming from the appellate courts on these types of issues begs review by the Supreme Court. So keep preserving these issues. Just in case.

Friday, November 21, 2014

Even Really Old Rules Are Broken

In two cases over a half-century ago (McNabb and Mallory), the Supreme Court gave teeth to the prompt presentment rule (see Rule 5(a)), holding that any confessions made during a delay in presentment must be suppressed. Congress codified the holdings at 18 USC 3501(c), drawing a line at the 6-hour mark. In other words, any confession made by a defendant more than six hours after arrest is inadmissible if the defendant has not been "presented" to a judge (think initial appearance). The time limit is somewhat flexible (depending on distance and difficulty to the nearest judge).
Despite the rule's age, this recent Third Circuit decision is a great reminder that the rule is not always followed. There, officers interrogated the defendant past the 6-hour mark and prior to his initial appearance. The district court admitted the statements at trial, the jury returned a guilty verdict, and the court imposed a really long sentence (over 24 years). The Third Circuit reversed. It rejected the government's argument that the defendant's attempts to cooperate justified the delay. It mentioned, among other things, that "the longer a defendant goes without being apprised of his rights, the more vulnerable he is." It also discussed the problem with false confessions. It is a great read, and we encourage you to read it. You can also read more about the case here.
So, remember to check the time-stamp on any pre-presentment statements made by your client. If the statements were made more than six hours after arrest, you might have a colorable argument to suppress the statements.     

Thursday, November 20, 2014

Not So Fast: The Supreme Court and Structural Error

The great majority of trial errors are subject to harmless error review. See Fed.R.Crimp.P. 52(a). Some errors, known as structural errors, are not. We are reminded of this with the Supreme Court's per curiam decision this week in Glebe v. Frost.  In that case, the Ninth Circuit below held that a state trial court's restriction of defense counsel's closing argument was structural error that required a new trial. Ninth Circuit law is clear on this. The problem for the defendant is that Supreme Court precedent is not. In other words, the Supreme Court has never held that restricting defense counsel's closing argument amounts to structural error. Because this was a habeas case, and because the asserted right was not clearly established by decisions from the Supreme Court, the defendant ultimately lost.
This was not the greatest case in terms of establishing the impropriety of harmless error review. The defendant thrice confessed prior to trial, then took the stand at trial and confessed a fourth time. Defense counsel, in closing, sought to challenge the sufficiency of the evidence, as well as assert a duress defense. The latter argument might make sense; the former strains credulity. In any event, the state trial court told defense counsel to pick one defense and prohibited any alternative arguments. The attorney did the obvious and argued duress. On appeal, the Washington State Supreme Court held that the restriction on closing argument was error, but that the error was harmless.
So, as it stands now, the Washington Supreme Court says such restrictions on closing argument are harmless error (according to the State's petition, most other courts do as well); the Ninth Circuit says that such restrictions are structural errors not subject to harmless error analysis. The issue is an open one in the Supreme Court. As far as we can tell, it is an open question in the Tenth Circuit as well.
Moving forward, remember that structural errors are those that infect the entire trial process and render it fundamentally unfair (such as the denial of counsel, a biased judge, and other reasons mentioned here). And you want errors to be structural. Otherwise, the error could be harmless. Some errors obviously are not structural; if it is not obvious, make the argument.

Wednesday, November 19, 2014

Providing Services To Illegal Aliens Gets A Little Less Risky

The following summary is from Andrew McGowan, an Assistant Federal Defender in Topeka, and it is about this recent decision from the Seventh Circuit (a case, incidentally, that the Court reversed the day it was argued and, in an even more unusual move, ordered the release of the defendants on bond). Enjoy! 
Prosecutors in Indiana indicted the defendants for conspiracy to encourage illegal aliens to reside in the United States and to shield them from detection by providing a service that allowed illegal aliens to title vehicles and obtain license plates in Indiana. A second count charged conspiracy to commit mail and wire fraud because the defendants deprived the state of Indiana of “money and property.” The Court found serious, reversible problems with both counts.
On the first count, the defendants provided paperwork (for $350) to customers who did not have, and who usually could not obtain, a Social Security number, so that these customers could obtain an employer identification number (EIN) for their new Limited Liability Company (LLC). Under Indiana law, the EIN allowed vehicles to be titled in the name of the LLC, which allowed illegal aliens (some of the "customers") to legally own cars. To create the LLC and obtain the EIN number, the illegal aliens hid nothing: they used their own names and addresses, and everything that they did was perfectly legal. One of the problems with the government’s evidence was that it did not prove that it was just illegal aliens who would or could use the service. It could also help legal aliens who could not work because of restricted visas, as well as citizens who did not want to use their Social Security number to title a car. The defendants were convicted and sentenced from 2-to-7 years' imprisonment.
The Seventh Circuit vacated the convictions because, among other things, the government could not sufficiently distinguish what the defendants did from what a grocer who sold goods to an alien the grocer knew to be an illegal alien did or what a doctor who treated a person the doctor knew to be an illegal alien did. The Court noted that the defendants did not shield their clients from detection because they supplied the state with their correct names and addresses. The Court had other problems with the convictions, including that under the government’s theory Indiana itself might be criminally responsible. Because of these concerns and others (which are fun to read), the Court held that the portion of the statute that the government relied on did not apply to “the provision of goods and services that are attractive to unauthorized aliens, legally residing aliens, and citizens alike.” With any luck, this also shields lawyers who represent illegal aliens from being prosecuted.
On the second count, the government provided two different theories: 1) that false statements on the application to transfer title of the cost of the vehicle (some reported sales were for $100 or $200) reduced the amount of tax revenue to Indiana and 2) the defendants caused the state to have to retitle the licenses, even if it did not suffer any financial loss. A conviction on the first basis might have been okay if the second basis had been a crime. But it was not a crime because documents were not “property” (see this case and this case).
At trial, neither party (nor the judge) noticed this problem, so none of the defense attorneys objected to the jury instruction that allowed the jury to convict on this basis. Also, there was no unanimity instruction (in the Tenth Circuit, 1.24 of the Criminal Instructions) that required the jury to further explain the basis of the conviction. One practice note, the Court almost found that the issue was waived because there had been no objection to the jury instruction. But, fortunately, the defendants made a motion for judgment of acquittal that allowed the Court to address the problem because the Rule 29 motion essentially questioned the legality of the conviction. The problem was that there were two possible bases for the jury verdict, one legal and the other not. So, the conviction could have been based on either a proper or an improper basis. Had the question been only one of insufficiency of the evidence on either basis, then the verdict would have been upheld
But, because the basis for the conviction could have been legally insufficient, the Court remanded the case for a possible retrial. This case is another reminder that just because the government charges something doesn’t mean it’s a crime.

Tuesday, November 18, 2014

United States v. Morrison, Part II: More on Special Conditions of Supervised Release

Yesterday, we discussed one aspect of United States v. Morrison.
The case also concerned the imposition of two special conditions of supervised release. One was a ban on cameras; the other a ban on the Internet. Both bans had an identical exception: permission from the probation office. In other words, if a probation officer decides that it is ok for Mr. Morrison to possess cameras, or to use the Internet, then it is ok. If not, then it is not.
Now, initially, this delegation of authority would appear problematic. After all, district courts, not probation officers, impose sentences, and conditions of supervised release are aspects of a sentence. At least one court would have a problem with the conditions on this ground. Mr. Morrison made a delegation argument on appeal, but not in the district court. The Court refused to consider the argument, however, holding that he failed to develop the argument in his briefs (we've read the briefs and respectfully disagree).
Let's think about this argument for a second. The conditions themselves were outright bans; the delegation allows the probation office to lessen the prohibition. Without this delegation, Mr. Morrison cannot possess cameras or use the Internet; with it, maybe he can. Conditions of supervised release may be modified "at any time" via a motion filed pursuant to 18 USC 3583(e)(2). Rule 32.1(c)(1) provides that defendants have the right to counsel at modification proceedings. So, perhaps the better route in such instances is to wait until the defendant serves his prison sentence and is released on supervised release. If probation refuses to lessen the bans, then an attorney, on behalf of the defendant, can move to modify the conditions, knowing that a court cannot fall back on (a probably improper) delegation to the probation office. Just a thought.
Mr. Morrison ran into other procedural hurdles. The Court held that his attack on the Internet ban was waived because he did not object to it below. Typically, a failure to object results in forfeiture, and plain error review on appeal, but here the Court found waiver, meaning no appellate review whatsoever, because, when prompted to object by the district court (apparently this attorney objected regularly (and rightfully, we think) to these types of conditions), the attorney objected only to the camera ban and not the Internet ban. This, says the Tenth Circuit, was deliberate; the attorney "thought about the argument, used it to argue in favor of a lesser sentence, and then chose not to object to it." The lesser sentence argument was an interesting one, although it did not work: impose a shorter sentence because the defendant, when released, will serve a lengthy term of supervised release under extremely strict conditions. As this case highlights, try this argument at your peril.
In a footnote, the Tenth Circuit suggested that, even if it were to consider the issue, it would uphold the ban because "the Guidelines recommend that courts impose this special condition," citing USSG 5G1.3(d)(7)(B). The Tenth Circuit is wrong. This Guideline suggests that district courts impose conditions in child pornography cases "limiting the use of a computer," not prohibiting the use of a computer. There is an obvious difference between a limitation and a prohibition.
This is getting long. Briefly, the camera ban. We think this was completely inappropriate considering that the case has nothing to do with Mr. Morrison's use of a camera. As far as we can tell, there were no allegations whatsoever that he took, or attempted to take, pictures of children. Actually, we have no idea if Mr. Morrison has ever even owned a camera. So, why ban a camera? Because he had images of child pornography that someone else took with a camera? There is no logic in this. So, instead of logic, the Court relied on cases from other Circuits. Yet, if you actually read those cases, they are materially different from the facts and circumstances of this case.
Let's hope Mr. Morrison has a reasonable probation officer. After all, the purpose of supervised release is to reintegrate defendants into society; that is impossible with prohibitions like the ones imposed in this case. If all else fails, we hope Mr. Morrison knows of his right to move to modify these draconian conditions if they actually come to pass.      

Monday, November 17, 2014

United States v. Morrison, Part I: The 10th Circuit's Latest on the CP Guideline

The Tenth Circuit was busy last week. It published four relevant criminal decisions. We've already talked about three. This is the fourth: United States v. Morrison. Because of its significance, we've decided to break down the case in two separate posts (so you'll get Part II tomorrow).
The first issue the Court addressed in Morrison asked whether the district court gave too much deference to the admittedly flawed child pornography Guideline (USSG 2G2.2). The argument centered on the 2-level enhancement for use of a computer, an enhancement that is applied in almost every child pornography case. The Court did not deny that a district court could vary downward if it disagreed with the child-pornography Guideline, but it made clear that district courts do not have to do so. The Court further found the district court's brief explanation as to why it refused to do so in this case to be sufficient. The Court thus affirmed the sentence.
The facts of this case deserve mention. The defendant possessed 20,000 images of child pornography. He distributed child pornography as well. Although charged with both distribution and possession, the government allowed him to plead only to the possession charge, reducing the statutory penalty range from 5-to-20 years to a statutory maximum of 10 years. This is not something that happens in all jurisdictions. The effect of this charging decision also reduced the offense level by 4 (see 2G2.2(a)). The Guidelines range went from 151 months on the low end, to 121 months on the low end, to 120 months (the statutory maximum). The defendant received the 120-month sentence. In other words, there are likely more sympathetic cases than this one (although we do not mean to suggest that we think a 10-year sentence was reasonable in this case).
So this case does not mean that you should stop arguing for variances in child pornography cases. You should continue to make those arguments. The Guideline is still flawed, and the Commission has again identified its revision as a policy priority this upcoming year.
One last point: although the defendant did not raise a substantive reasonableness argument, the Court still noted that it "may" apply a presumption of reasonableness to within-Guidelines-range sentences. Tom Bartee, our Branch Chief in Kansas City, is at the Tenth Circuit tomorrow, and he is trying to convince the Court not to apply such a presumption in cases involving 2G2.2 (basically because the Sentencing Commission itself has said that the Guideline is flawed). There are actually Circuits that do not apply presumptions of reasonableness to within-Guidelines-range sentences. So the argument has some force (we think a lot of force).
More on this case tomorrow.