Wednesday, January 3, 2018

Third-party-notification condition unduly vague

Condition 12 of the standard conditions of supervised release adopted in Kansas (D. Kan. Standing Order No. 16-2, tracking USSG § 5D1.3(c)) provides:
If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.
Last month, the Sixth Circuit agreed with the pro se appellant in United States v. Sexton that this condition is unconstitutionally vague, joining the Seventh Circuit, which held in United States v. Thompson, 777 F.3d 368, 379 (7th Cir. 2015), that this condition is "riddled with ambiguities." Exactly what sorts of risks must be disclosed to what third parties?

Object to this condition. Otherwise, your client may end up like Mr. Sexton, whose probation officer concluded that he was required to disclose all of his romantic liaisons, so that the officer could notify Sexton’s partners of his federal conviction. Not the best start to a relationship.

Image result for risk warning

Monday, January 1, 2018

Trial Skills: Book Reviews

With the new year, some of us are making resolutions, like we will read more. We have gift cards or holiday money that we need to spend. It is too cold to go outside. And . . . we should expect to see more trials in 2018. With that, here are a few book recommendations:

Images With Impact: The Design and Use of Winning Trial Visuals, by Kerri L. Ruttenberg. Our jurors learn and remember more when information is received visually as well as aurally.  This is not a book about PowerPoint, but the "benefits of visual communication and the graphic design techniques that make our visuals more effective."

Trial in Action: The Persuasive Power of Psychodrama, by Joane Garcia-Colson, Assistant Federal Public Defender Fredilyn Sison, and Mary Peckham. "This book is intended for practicing attorneys." Not wild about the term psychodrama, but it is really just a method of credibly and effectively communicating your client's defense to a jury. It provides concrete and creative instruction on how to try the most challenging cases.

The Fearless Cross-Examiner: Win the Witness, Win the Case, by Patrick Malone. This book's approach might surprise you--it is not about going for the dramatic kill on cross, but how to comprehensively build your case through cross. Aaron Nelson recommended this book when he spoke at our October CLE on cross-examination (if you missed him, check out his materials on our website).

Not just for writers, Bryan Garner's Making Your Case (a book you must own) provides an excellent list of books under Recommended Sources, including topics like Modern Guides to Classical Rhetoric, Public Speaking, and Logical and Critical Thinking.

Read away.


Thursday, December 28, 2017

Offer to sell is still not a controlled substance offense

Back in August we told you that a prior Kansas drug offense that can be committed through an offer to sell does not qualify as a controlled substance offense under § 4B1.2(b).

Well, ditto for Colorado. Today the Tenth Circuit held, in United States v. McKibbon that because Colorado § 18-18-405 may be violated through an offer to sell, it is categorical broader than
§ 4B1.2(b)'s definition of a controlled substance offense.

Wednesday, December 27, 2017

Profile evidence: "inherently prejudicial"

The rule seems clear enough: "Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait." Fed. R. Evid. 404(a)(1).

And yet the battle rages on over whether and when the government may present expert profile evidence in a criminal case. The Ninth Circuit weighed in earlier this month in United States v. Wells with a resounding NEVER when its purpose is to prove substantive evidence of guilt.
Related image
Wells covers a lot of profiler ground, and is a must-read for any lawyer faced with the admission of this sort of evidence. Bottom line: The use of this evidence to prove guilt violates Rules 404(a)(1) and 403:

"As we have explained, testimony of this nature is "inherently prejudicial," has no place as substantive evidence of guilt, and would therefore fail Rule 403’s balancing test."

Wednesday, December 20, 2017

"Protective sweep" suppressed

Earlier this week, the Tenth Circuit held, in United States v. Bagley, that a protective sweep of a house in which police had no articulable suspicion that a dangerous person was inside violated the Fourth Amendment.

The Marshals had a warrant for Mr. Bagley's arrest. And they found him in a house. The only people they knew were in the house was Mr. Bagley, his girlfriend, and her children. The Marshals were able to get all of them out of the house without incident. But instead of simply arresting Mr. Bagley and bringing him in, the Marshals engaged in what they claimed was a protective sweep, which resulted in the discovery of two rounds of ammunition and some marijuana. They used that information to obtain a search warrant which resulted in the discovery of a gun.

The government claimed the Buie exception that allows a protective sweep applied to justify the initial discovery of ammo and marijuana. The Court rejected that argument, holding that a lack of knowledge if anyone is in the house does not suffice to support the required articulable suspicion of a dangerous person.

Tuesday, December 19, 2017

Taking detention decisions seriously

Yesterday, the Tenth Circuit undid a second detention order in as many months. As we blogged about earlier, last month in United States v. Ailon-Ailon, the Court vacated an illegal-reentry defendant's detention order after holding that the risk of involuntary removal by ICE does not establish a risk of flight under the Bail Reform Act.

In United States v. Mobley, the Tenth Circuit sent back an international-parental-kidnapping defendant's detention order after finding it flawed in two ways:

First, the district court rested its detention order on its finding that the defendant posed a flight risk without considering whether any release conditions would assure her appearance at trial.

Second, the district court failed to take into account the defendant's proposed affirmative defense when considering the nature of the offense.

We already know that pretrial detention increases our clients' exposure to conviction, longer sentences, and recidivism. Thanks to the Tenth Circuit's enforcement of the Bail Reform Act, now we have a few more tools with which to fight that detention.

Thursday, December 14, 2017

1) Read the whole PSR; 2) Object

It is certainly important to make sure our client's offense level and criminal history is calculated correctly. Keeping clients sentence to a minimum is a fundamental part of criminal defense. But it doesn't end there. Once our clients are released from prison, they are subject to a term of supervised release. And sometimes the conditions of that supervised release make our clients life extremely difficult - even worse some of those conditions should have never been imposed in the first place.

Mr. Cohee's attorney failed to object to one such condition. And as a result of that, Mr. Cohee can't have any contact with his own children. Because the Court reviewed the condition on a plain error standard Mr. Cohee lost and can't see his own child, even though he alleged a violation of his constitutional right to familial association. Review all of the conditions of supervised release. Object.