Sunday, August 10, 2014


[re-cap of Kirk's RDAP blog, January 2014]

"Am I eligible for RDAP?" is a question often asked by our clients, and there is a lot of misinformation out there. All inmates at every institution have drug abuse counseling available, either as an educational or non-residential program. But those don't earn any time off. BOP offers a residential drug treatment program that, if successfully completed, can reduce the sentence by up to one year.

Here is a quick primer:

Make sure that any substance abuse problem is documented in the PSR  (this is usually why we let our clients talk about it in the PSR interview). A drug evaluation that confirms a substance abuse disorder is helpful, and can be included in the PSR or submitted directly to BOP.

Ask the sentencing court to make a recommendation to BOP for RDAP.

The program lasts for a minimum of 500 hours over 12 to 15 months.

Remaining sentence length determines time off -- 30 months or less may earn up to six months off; 31 to 36 months, nine months; and 37 or more, a maximum of 12 months.

Those ineligible include,

  • ICE detainees;
  • those with a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, agg assault, arson, kidnapping, or sex offenses involving minors;
  • a current offense that has an element of actual, attempted, or threatened physical force against a person or property of another;
  • a current offense that involved carrying or use of a firearm or explosive [note: this includes the two-level gun enhancement for drug offenses];
  • conspiracy involving the prior two factors;
  • a current offense that presents a serious risk of physical force against a person or property;
  • a current offense involving sexual abuse of minors; or
  • anyone who previously received early release.

Participants are about 15% less likely to recidivate than non-participants.

Co-occurring disorder programs, also known as dual disorder treatment, treats co-existing substance abuse disorders and either mental health disorders or medical problems. Only two facilities offer this specialized treatment,  FMC at Carswell, Texas (women) and FMC at Lexington, Kentucky (men). The same early release eligibility is available.

The Challenge Program is for high risk/security clients who have substance abuse and major mental health disorders. No early release, but successful participants may lower their security points enough to transfer to medium security and apply for the RDAP program (and then maybe earn early release).

The BOP Program Statement for Early Release Procedures is here.

A list of facilities that offer RDAP is here.

More information is available at BOP's 2012 Report to the Judiciary Committee on substance abuse programs and the February 2012 GAO Report reviewing BOP programs that may allow a  sentence reduction (it is a rather short report).

Sunday, July 27, 2014

Talking About Race in the Courtroom

Racial bias is a difficult subject to talk about in a meaningful way, especially with prospective jurors. As one of the authors of Implicit Bias in the Courtroom, 59 UCLA L.Rev. 1124 (2012), Judge Mark Bennett, U.S. District Court Judge for the District of Iowa, has written about his efforts to counter bias in the courtroom. 

During jury selection, Judge Bennett spends time talking with the venire about implicit bias. He then asks each juror to take the following pledge, which is also posted on the wall of his courtroom,
I will not decide this case based on biases. This includes gut feelings, prejudices, stereotypes, personal likes or dislikes, sympathies or generalizations.
The Judge's jury instructions include,
Do not decide the case on 'implicit biases.' As we discussed in jury selection, everyone, including me, has feelings, assumptions, perceptions, fears, and stereotypes, that is, 'implicit biases', that we may not be aware of. These hidden thoughts can impact what we see and hear, and how we make important decisions. Because you are making very important decisions in this case, I strongly encourage you to evaluate the evidence carefully and to resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The law demands that you return a just verdict, based solely on the evidence, your individual evaluation of that evidence, your reason and common sense, and these instructions. Our system of justice is counting on you to render a fair decision based on the evidence, not on biases.
And there is more. In the course of talking with the potential jurors, the Judge shows a clip from an ABC show, What Would You Do?, recording passers-by varied reactions to a white man, a black man, and then a young white woman trying to force open a bike lock, 

 The article closes,
We recognize that our suggestions are starting points, that they may not all work, and that, even as a whole, they may not be sufficient. But we do think they are worth a try. We hope that judges and other stakeholders in the justice system agree. 

Tuesday, July 22, 2014

Not A Felon, Part II

  • From guest blogger AFD David Freund,

          After U.S. v. Brooks, a Kansas “felony” conviction is only a felony for purposes of the federal felon-in-possession statute and the Armed Career Criminal Act if the Kansas guidelines sentence could be greater than 12 months. But what about prior Kansas convictions where a sentence of more than one year could have been imposed?
           A  conviction for which civil rights have been restored does not count as a predicate felony for either the felon in possession or Armed Career Criminal statutes. 18 U.S.C. 921(a)(20).“Civil rights”, as used in 921(a)(20), are the right to vote, hold office, and serve on a jury. Logan v U.S., 552 US 23, 28 (2007).  In Kansas, these disabilities commence upon conviction and continue until the sentence is satisfied. KSA 21-6613. For persons committed to serve prison sentence, civil rights, except for the right to possess firearms, are restored upon completion of the term of imprisonment, including any period of postrelease supervision or parole. KSA 22-3722
          A state conviction for which an offender has obtained a pardon or expungement is not a felony for purposes of section 921(a)(20) unless the pardon, expungement, or restoration of civil rights expressly provides the person may not ship, transport, possess or receive firearms. Where state law has unconditionally restored a person’s civil rights, including the right to possess firearms after a felony conviction, the federal disability imposed by such a conviction under 922(g)(1) is removed. US v. Jones, 390 F.3d 1291 (10th Cir 2004); U.S. v. Haynes, 961 F2d 50 (4th Cir 1992).
           This restoration must be unconditional. A restriction on the right to possess any type of firearm prevents restoration of firearms rights under federal law. Caron v. US, 524 US 308 (1998).
        The law of the jurisdiction where the conviction occurred governs whether rights are restored. 18 U.S.C. 921(a)(20). K.S.A. 21-6304 sets the applicable period after a felony conviction during which a person is prohibited from possessing a firearm. Depending on the nature of the offense, and whether a firearm was possessed during the offense, the ban is lifetime, ten years, or five years. 
         To meet the 921(a)(20) civil rights restored exclusion for purposes of 922(g)(1) or 924(e), the right to possess firearms must have actually been restored for the conviction(s) at issue. A subsequent Kansas felony conviction within the statutory period of prohibition (even if it is not subject to a term of imprisonment greater than one year) would prevent the restoration of firearms rights, and thus the restoration of civil rights, upon expiration of the otherwise applicable five or ten year ban. US v. Burns, 934 F.2d 1157 (10th Cir. 1991); US v. Baker, 508 F.3d 1321 (10th Cir. 2007). 

More questions or information needed, contact David at

Sunday, July 13, 2014

In Defense of Santa Muerte

     The brightly adorned skeleton, often holding a glass globe, scales of justice or a scythe, is many things to many people. She is a comfort to outcasts; a miracle worker who provides safe travels for those on a journey; and a figure who has become so popular in Mexico and the United States as to be worthy of denouncement by the traditional Catholic church. 

     What Santa Muerte is not, however,  is a "tool of the drug trade." The Tenth Circuit recently overturned two convictions after jurors heard testimony from a law enforcement anti-cult "expert" about the link between drug traffickers and the folk saint, Santa Muerte, or Our Lady of the Holy Death. The witness, U.S. Marshal Robert Almonte, has conducted law enforcement trainings, written about the "narco saint," and testified as an expert in previous criminal trials.
     Here, the defendants were stopped for a traffic violation. As they were being questioned, the officer noticed that the passenger was holding a prayer card with an image of Santa Muerte. At their drug trafficking and firearms trial, Agent Almonte was allowed to testify as an expert that the presence of a Santa Muerte prayer card, was "a very good indicator of possible criminal activity."  Almonte also told the jury that "very often criminal drug traffickers and other criminals pray to her for protection from law enforcement or anybody else they consider to be their enemy."  He further opined that, based on his experience, a person offering a similar prayer to St. Jude, patron saint of desperate causes, would not be a sign of suspicious behavior because "St. Jude is a legitimate Catholic saint." That testimony, the Court wrote, was close to "psychobabble and substantially influenced the outcome" of the trial.

    US v. Medina-Copete, written by Judge Lucero, held that the New Mexico trial court erred in failing to consider whether a prayer card  could qualify as a "tool of the drug trade;" erred in qualifying Almonte as an expert based on mere correlations derived through his "own self-study of the 'iconography of the Mexican drug underworld,'" rather than on "facts or data" as required by Rule 702(b)and erred in using the fact that Almonte had been qualified before as an expert, rather than whether his background qualified him to be an expert. 

    This decision should be useful, and not just in cases involving evidence of Santa Muerte shrines, prayer cards and figurines. Police officers who testify as experts are subject to notice requirements, FRE 702, and may be challenged as experts under Daubert.  Expertise must be founded on something more than personal observations and conclusions. FRE 702 criteria and Daubert's gatekeeping function should expose law enforcement speculation disguised as expertise.

-- from guest blogger Laura Shaneyfelt. 

Thursday, June 26, 2014

Cell Phone Week

This week, the Supreme Court decided Riley v. California, unanimously holding that police must get a search warrant to look through cell phone data because "cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.”  As SCOTUSBlog points out in this symposium, this decision will reach far beyond your old flip phone to recast access to cloud-based data and the third-party doctrine. The Electronic Frontier Foundation (EFF) talks about the magnitude of Riley here.

Today, the New Yorker has an article, What Your Cell Phone Can't Tell the Police, that calls into question the accuracy of cell-tower location information (this is different from the insidious GPS tracking data that live in your iPhone). Apart from reliability is the question of whether a warrant is needed to get those records. Riley probably answers that. One more point: this sort of data may be subject to a Daubert challenge.

And the Eleventh Circuit just held (not this week, but June 11), in a case of first impression, that cellphone site location information -- imprecise as it may be -- obtained under the Stored Communications Act (which does not require a warrant) actually does require a warrant. 

The question,
[W]hether [the Fourth Amendment] protection covers not only content, but also the transmission itself when it reveals information about the personal source of the transmission, specifically his location.
The answer,  
[W]e hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.
Of course, then the defendant got Leon-ed. But this is an important case for many reasons, not the least of which is that the Court found that the Fourth Amendment demanded more than the statute required. 

Maybe the law is starting to catch up with technology. Slowly. At least the courts recognize that data is different. Quite a week for cell phones.


Wednesday, June 25, 2014

Taking Too Much For Too Long: Computer Seizures

The Second Circuit, ruling for the defense, published a decision that not only condemns unreasonable computer searches, but also calls out government bad faith and the need to deter unconstitutional conduct in the area of digital forensics. 

When the government seizes computers or other large data digital storage media, it usually removes the items from the search site to a forensics lab because, it argues, a true forensic search cannot be done in that location or in that time frame. A year or more later, perhaps there is an indictment. 

Most of the time, though, that seizure and removal encompasses more than the target of the warrant. As we know from today's decision in Riley/Wurie, technology can and does store vast amounts of personal information. How long can the government keep information seized pursuant to a lawful search but that, as it turns out, is not responsive to the warrant? How long can it keep family photos, music files, and other everyday, innocent, and usually boring detritus?

In US v. Ganias, the agents didn't actually take the computers, but made mirror image copies of three hard drives, which contained much information outside the warrant. In other words, it was not what they were after. At least not at that time. 

Another later investigation led to questions about those documents, and two-and-a-half years later, the government got a warrant for the information already in its possession. Those documents no longer existed on the defendant's computers. The issue and the answer, in short order, 
[W]hether the Fourth Amendment permits officials executing a warrant for the seizure of particular data on a computer to seize and indefinitely retain every file on that computer for use in future criminal investigations. We hold that it does not.
Then, the Court found that information should be excluded because "the agents could not have had a good-faith basis to believe the law permitted them to keep the non-responsive files indefinitely," rejecting arguments that the defense should have asked for it back and that it was too much trouble to delete the non-responsive information. 

And, finally, deterrence, the heart of the exclusionary rule. 
"[T]he benefits of deterrence in this case are great. With the Government's use of forensic mirror images becoming increasingly common, deterring its unconstitutional handling of non-responsive data has grown in importance.So while temporary retention may be reasonable, indefinite storage of intermingled information outside the scope of the warrant is not. 

From the Volokh Conspiracy, Orin Kerr's take on Ganias.

Saturday, June 21, 2014

Cutting into Paper

By guest blogger AFPD Andy McGowan,

We are usually more concerned about how much time our clients are facing than we are about the conditions of supervision. But, there is no reason not to review the conditions closely to make sure that they are warranted and that they are not too vague. The Seventh Circuit has very recently published a series of cases where they removed or modified several common special conditions of supervision because the facts of the case did not support them or because they were too vague. See United States v. Siegel, 2014 WL 2736016(7th Cir. May 29, 2014), United States v.Baker, 2014 WL 2736016 (7th Cir. June 17, 2014), United States v. Poulin, 745 F.3d 796 (7th Cir. 2014) (remand in child porn case for judge to reconsider ban on unsupervised contact with minors, including son, and prohibition on accessing and possessing adult pornography); and United States v. Shannon, 743F.3d 496 (7th Cir. 2014) (remand to reconsider complete ban on possession of material containing sexually explicit conduct in child porn case).

The conditions in the two most recent cases included a complete ban on possessing anything with nudity in a child abuse case (modified), a prohibition on consuming any “mood altering substances” (modified to include psychoactive substances that impair functioning), a complete ban on drinking alcohol (modified to prohibit excessive use of alcohol), and a ban on contact with a minor, even the defendant’s child (eliminated). By clicking the link below, you can access a bit more analysis of the most recent two cases to give you a flavor of the types of arguments that were successful and why. 

Here's Doug Berman's post on US v. Seigal, calling it a must-read for all federal criminal defense practitioners.

Andy's long(er)-form analysis follows: