Monday, July 6, 2015

Leon: Fail

Too often, a good suppression issue is rejected because of Leon. Even if the warrant is constitutionally flawed, the good-faith doctrine set forth in U.S. v. Leon saves the bad search. Innumerable attacks on search warrants have been turned away on the assumption that Leon will salvage the search. Courts even skip the Fourth Amendment challenge to the warrant and go straight to Leon -- if the officers acted in good faith, why bother deciding whether the search itself was unconstitutional? The power of Leon, even 30 years later, sometimes deters the best defense lawyer from even challenging a bad search.

It is a rare event when an exception to Leon applies. But that was the surprising holding by the Tenth Circuit in United States v. Cordova. A warrant lacked probable cause to believe that drugs would be found at the place to be searched. The warrant was so deficient that the Court concluded "the affidavit contained so few facts implicating either Cordova or his current home that a reasonable officer could not have relied on the warrant in good faith."

The decision is intensely fact driven, with stale information and and confidential informants. It will not, on its own, reach many cases as on-point factual precedent. And the legal analysis is rather sparse. But it is written, and the case reversed. Those Fourth Amendment challenges to the search warrants should still be pursued because sometimes Leon fails.

Wednesday, July 1, 2015

It’s the Thought that Counts---Even for Knuckleheads

From guest blogger Paige Nichols,

Have you ever wondered how far your laser pointer can point? This turns out to be a mystery best left unsolved. That’s the lesson Sergio Rodriguez learned after he was caught aiming a $7.00 toy laser at a helicopter that was more than 1,000 feet up in the air. Mr. Rodriguez was convicted under both 18 U.S.C. § 39A, which prohibits intentionally aiming a laser at an aircraft, and 18 U.S.C. § 32(a)(5), which prohibits intentionally or recklessly attempting to interfere with the safe operation of an aircraft. Last week, the Ninth Circuit reversed Rodriguez’s § 32(a)(5) conviction, finding insufficient evidence to support it. In so doing, the Court emphasized the difference in the intent required under § 39A, and that required under § 32(a)(5):

The evidence clearly shows that Rodriguez was rightfully convicted of aiming the laser pointer at a helicopter (§ 39A). However, there is insufficient evidence that he willfully attempted to interfere with the safe flight of the helicopter (§ 32(a)(5)). Rather, the evidence showed that he was attempting to see how far his laser would go at night---a stupid thing to do, yes, but there is no evidence that he was trying to interfere with the pilot. Section 39A is designed for knuckleheads like him. On the other hand, 18 U.S.C. § 32(a)(5) is designed for both the Osama bin Ladens of the world---people trying to bring down a plane, intending to cause harm---and those who are aware that their actions are dangerous and could harm others, but just don’t care. The failure to recognize this distinction is to fail to appreciate that Congress saw fit to create two different crimes, one more serious than the other, for two different types of offenders.

The case is a nice reminder that intent matters, and stupidity does not equal recklessness. For Mr. Rodriguez, the result means the difference between a 14-year sentence, which is what the district court gave Rodriguez, and a 5-year sentence, which is the max he can get for his § 39A conviction.

And about those laser pointers: They may be more powerful than you think. The label on the pointer seized from Mr. Rodriguez said “Max Output Power < 5 milliwatts.” But both defense and government testers found that the laser had up to 65 milliwatts of power. Laser beams don’t operate like normal beams. They expand as they travel. Mr. Rodriguez’s laser beam would have had had a diameter of about 11 feet when it hit the helicopter at 1,000+ feet. Who knew? Not the average person, says the Rodriguez Court. But you, now that you’ve read this? Consider yourself warned.

Sunday, June 28, 2015

A Failed Enterprise

The world changed in a lot of ways last Friday. Some changes were easily grasped; some will take longer to fully comprehend.  

The world changed for some people who are serving 15 years or more in prison. The statute that drove the no-less-than 15 year penalty was held unconstitutional, at least in part. Some of these people were, and are, actually innocent of the penalty. They may go home soon. This is retroactive. How much more reach will it have? Carl writes about this below. 

Here’s the case: Johnson v. US, reversing the Eighth Circuit in an 8-to-1 decision, with Justice Scalia writing for the majority and Justice Alito as the lone dissent.

Here’s the issue: The Armed Career Criminal Act, or ACCA, requires a mandatory fifteen-year sentence for a felon-in-possession if that person has three or more previous convictions of a violent felony or a serious drug felony. A violent felony includes any felony that “involves conduct that presents a serious potential risk of physical injury to another.” This is known as the residual clause. The Court held that this definition is too vague to be constitutional

Here’s the standard: A criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement, is unconstitutional. It violates the Due Process Clause of the Fifth Amendment. 

And the holding: “We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to the defendant’s and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law.” Justice Scalia deemed the nine-year effort to salvage the residual clause “a failed enterprise.” 

Next: This is a 50-plus page decision, with concurrences and a dissent. Some of the issues are easy to grasp; some will take longer to absorb. But Johnson is important, and immediately so. More in-depth posts in the coming days, but for the short-term reactions, distinctions, and musings, read on. 

Tom:  The Court identified two vagueness concerns. First, a court must determine not whether the defendant's real-world conduct created a substantial risk, but rather whether an idealized "ordinary case" of the crime involved such a risk. But it's unclear how to define such an ordinary case and whether such a crime creates the requisite degree of risk -- should this be done through statistics, surveys, expert testimony, or judicial intuition? So this type of indeterminancy relates to the specific type of crime at issue. Second, a broader problem relates to the indeterminancy of the ACCA's "serious potential risk" standard. The four enumerated crimes vary widely in the degree of risk each poses, so it's impossible to distill a clear standard from them. This indeterminancy goes to both the degree of risk and the type of risk required to qualify a crime as a violent felony. Some crimes happen to be close enough to an enumerated crime (e.g., in James attempted burglary qualified because it was sufficiently analogous to the enumerated crime of completed burglary) and other crimes happen to be of a kind for which statistics are maintained (e.g., escape as in Chambers or eluding as in Sykes) but these may be outliers. Lower courts have also disagreed widely not only on their categorization of priors but also in their analysis -- the nature of the inquiry, the relevant factors, and the probability of harm required, and this supports the notion that the statute is indeterminate. 

Melody: On a more basic note, Johnson is limited to the residual clause definition. The four enumerated crimes that Tom refers to are in the text of the statute -- arson, burglary, extortion, and crimes involving the use of explosives. Those definitions remain in force (although still problematic, in some instances). 

Carl: This case will obviously lead to a lot of ACCA defendants getting new sentences. But it could also have dramatic impacts for many other defendants. For example, the definition of ACCA “violent felony”is virtually identical to the guideline definition of "crime of violence." And the Tenth Circuit has treated the analysis the same. So Johnson’s holding that the residual clause of the ACCA is unconstitutionally vague (as to what constitutes a "violent felony") could impact many cases where a “residual clause”-type analysis was used to enhance the sentence based on a prior conviction for a crime of violence (as defined in USSG 4B1.2(a)). 

Melody: Those will be good arguments going forward.  Johnson will be retroactive for the true ACCA/actual innocence cases. But is there a way back into the guideline "residual-clause"-type cases that are already sentenced? Probably not.

Kirk:  Shucks, I don't know. I am trying to figure out a way to rodeo up the PSRs that will let us find the clients who are affected by Johnson. I'm just the accountant who provides the raw material to the smart folks.

Dan: Persist. Endure. Survive. This is the message. This is the heart of it all. Because twice in the last ten years, a majority of the Supreme Court opined that the residual clause was not, in fact, unconstitutionally vague. Lower courts turned this dicta into law. We had lost. This battle was done. Until it wasn't. Put aside the future for a moment. Think about the past. And understand that what once was may no longer be. We learned this on a grand scale this June 26. We learned that, when right is on our side, we have a fighting chance. Keep up the fight. [Preach it, brother].

Kirk: Sure. This is the decision that emboldens the “exception proves the rule” crowd. Alamendarez-Torres, anyone? Keep filing those cert petitions. And keep telling clients that you will fix things at the Supreme Court. Even though you won’t.

Johnson is an extreme outlier. It happens. I know it does. But it happens once in forever. Dan has limited faith in appellate courts, because he negotiates them better than I ever could. But we have to recognize the odds. Which are bad. I vote for maximizing gain in district court. 

Melody: Or perhaps both. When you win at the appellate level, you can win big. Like Johnson. Or Brooks. Or Booker. I say this as I am neck-deep in an Almendarez-Torres challenge. Because that case WILL fall. 

Back to Johnson . . . .

Tom: The opinion may help in other vagueness challenges. For example, the majority rejects the notion that a statute cannot be void for vagueness unless it is vague in all applications -- that is, it rejects the notion that because there may be cases unquestionably within the scope of a statute, the statute is not vague. The Court recognizes that the relevant question is whether the statute is vague, and this one is. The Court distinguished other cases rejecting vagueness challenges because this statute, unlike statutes using phrases such as "substantial risk," requires a court to look not at what occurred on an actual occasion but at an abstract idealized case. This might open the door to vagueness challenges of some other recidivism statutes (or maybe even USSG provisions) to the extent that they require categorizing a prior conviction based on some attribute of an idealized version of the crime rather than, for example, its elements. Are there other statutes or USSG provisions similar to the residual clause in this regard?

Carl: The existence of a prior “crime of violence” determines whether a defendant qualifies as a career offender. It also impacts the offense level for basic felon-in-possession cases under USSG 2K2.1. Similarly, illegal reentry defendants see increases in their offense level under USSG 2L1.2 for prior crimes of violence. See, e.g., U.S. v. Ventura-Perez, 666 F.3d 670, 673 (10th Cir. 2012). And I'm sure there are even more enhancements for prior crimes of violence that are not immediately apparent. In short, Johnson was huge for defendants who received the mandatory minimum sentences under the ACCA. But it could have a much greater impact than just in ACCA cases. 

To be continued . . . . .

Thursday, June 25, 2015

Just in Case

A new legal podcast has been launched by Paige Nichols. Just in Case will review US Supreme Court, Tenth Circuit, and Kansas appellate decisions in criminal cases. You know, cases just in. In case you needed to know. Expect a new podcast about every two weeks. Two are already posted and ready for listening. Original music accompaniment. The podcasts will run about a half  hour to 45 minutes, and will host different guests to talk about cases that are just in. Sponsored by Monnat and Spurrier, the podcast link is on their website, or here.

As always, Paige is educational, erudite, and entertaining. Tune in to Just in Case.

Tuesday, June 16, 2015

Probation is Punishment

With all of the talk about over-incarceration and pending legislation designed to reduce prison overcrowding, probationary sentences are gaining momentum. In advocating for a non-custodial sentence, the courts should be reminded that probation is not a free pass. This passage from Gall v. US catalogs the penalties,
Probationers may not leave the judicial district, move, or change jobs without notifying, and in some cases receiving permission from, their probation officer or the court. They must report regularly to their probation officer, permit unannounced visits to their homes, refrain from associating with any person convicted of a felony, and refrain from excessive drinking. USSG § 5B1.3. Most probationers are also subject to individual ‘special conditions’ imposed by the court. Gall, for instance, may not patronize any establishment that derives more than 50% of its revenue from the sale of alcohol, and must submit to random drug tests as directed by his probation officer.
In Gall, the Court approved of a variance from 30 to 37 month guideline range to probation (and rejected a presumption of reasonableness at the district court level). The Court also said,
[T]he probation or parole conditions imposed on an individual can have a significant impact on both that person and society .... Often these conditions comprehensively regulate significant facets of their day-to-day lives .... They may become subject to frequent searches by government officials, as well as to mandatory counseling sessions with a caseworker or psychotherapist.
Just the stigma of a felony carries with it a devaluation in our society, in employment, housing, and reputation. All, of course, in addition to losing the right to vote or carry a firearm. Other "invisible punishments" and collateral consequences bear down on  our clients and should not be ignored in measuring the appropriate sentence.

Congress recognized the value of a probation sentence, distinct from a prison sentence, and not just a matter of judicial grace in extraordinary cases. In fact, through the Sentencing Reform Act, Congress told the Commission to design guidelines that preserved  probation as a ‘generally appropriate’ sentence in certain cases, such as nonviolent crimes or first offenders. The initial provision of 28 USC §994(a)(1) directs that the first sentencing decision under the guidelines should be whether probation or prison is appropriate.

That didn’t happen.  Instead the Commission devised guidelines that made probation a rarity in federal court, all but ignoring the great significance of nonviolent offenders or first-time offenders.  This Guideline defect from flawed empirical data – in averaging sentences from past practice, the Commission excluded non-prison sentences, thus eliminating 48% of all sentences imposed during the relevant time frame.

Now, with the move toward alternative sentences and the overarching concern about prison overcrowding and over-incarceration,there is more reason than ever to advocate for a non-custodial sentence. According to the United States Sentencing Commission, about 7.1% of 2014 cases received probation,and this should climb. The USSC website and resources offer much information about the rates of probation for each category of offense. Good fodder for our sentencing memos.

Friday, June 12, 2015

Judicial Coefficients

Note: if you read this entire post, please note in the comments section. We have statistical comparison (betting pool) on this factor. -- Melody

Prologue: So we are working on a statistical instrument to measure different plea bargaining strategies. The following is an email thread discussing our approach. Dan Hansmeier, Carl Folsom, Melody Evans, and myself (Kirk Redmond) are quoted. The names of Judges are redacted to protect the innocent.

Spoiler (from Kirk) - Dan is wrong, but funnier and more profane than anyone else.

We are getting close to having enough data to analyze. The question is what to do with it. One of the ideas was that we would normalize between judges by adding a coefficient. The idea was to compare the SD (sentence differential: sentence expected minus sentence imposed) for each judge against the low end, and add a multiplier. If Judge XXXX sentences illegal re-entry defendants at 1.21 times the low end of the guideline range, we should multiply the sentence expected by 1.21 to account for how s/he actually sentences defendants. This is a recognition that a low end sentence is not the expectation in front of Judge XXXX in a 1326 case.
But it occurred to me just now, because I'm dense, that this approach should not extend across all plea options. Binding pleas don't affect what the judge can do to the client, unless it is rejected, which we keep track of separately. 5K motions don't affect what the judge does, because they are [almost] always followed. Charge bargains are a more difficult question. They usually leave the ultimate sentence up to the judge.  I think we should only apply the multiplier in open plea and no plea agreement cases. The other plea (or acquittal) options don't measure judicial performance. We need to get this straight before we set up the database.
Doesn't this coefficient obliterate the known comparator (the low end of the Guidelines range)?
I don't follow the coefficient. I don't understand why we need to fudge the numbers to recognize that some judges vary downward in certain cases. The actual numbers, compared to the Guidelines range, will tell us that, right?
And how does the coefficient affect our ability to compare judges? I'm lost when I try to imagine that scenario.
And I'm not following. How is the low end of the guideline range the baseline if a particular judge doesn't sentence at the low end in a particular case type? Assuming that the low end is a stable result seems dumb if the data doesn't agree. It's not fudging the data, it's adjusting for the results.
You lost me. The low end is the low end because, by definition, it is the low end. It is the one constant that allows a cross-comparison. It is why that brilliantly odd KU professor [edit: Not who you might be thinking of if you know what we are doing] got a boner when we talked with him that day. Maybe I'm wrong, but it seems to me that as soon as the low end is something other than the low end, it is impossible to compare between judges. Well, at least impossible to make a meaningful comparison between judges. And it makes it more difficult to advise clients.
Wouldn't this be like adjusting ERA based on the strength of the opposing team? Or maybe awarding less than or more than one steal based on the arm strength of the opposing catcher? Is that similar to what the coefficient does? Does Billy Beane do this shit?
We don't throw out the low end. We see whether judges actually adhere to it.
This is like baseball guys adjusting for the park in which the team plays. Say a guy hits 38 home runs. It matters whether he plays 81 games at Coors Field or 81 games at Petco (before they moved the fences in this year). If you are considering signing that guy as a free agent, you have to know whether those home runs were a product of his skill or a product of the park he played in.
Or with your ERA example, you have to consider the defense behind the pitcher. A pitcher’s ERA may be low because he is awesome, or it may be low because he puts the ball in play a lot and the defense goes and catches it.
For the same reason, it matters what court you are in when determining what approach to take to a given case. Returning to the example of Judge XXXX sentencing a 1326 case, it will be useful for the client to know whether s/he generally sentences defendants to the low end of the guideline range. I suspect that is not true. But we will be able to find out soon enough. If s/he does not, we can see how far away from the low end s/he generally imposes sentence. That is a critical piece of advice for clients- is a low-end recommendation worth bargaining for? Because if it’s not, we should try to lock in a binding plea, even if it's just to the low end.
The inverse is Judge XXXX on a drug case. If s/he is statistically likely to vary downward, then why would you ever enter a low-end plea agreement? More specifically, if Judge XXXX sentences drug cases at .89 of the low end, shouldn't you always plead open and argue for a variance? You can't find that out if you use low end as an unaltered constant.
Carl is enjoying this from afar.
Redmond's Coefficient. My children will study this one day. Well, the younger one. The older one might not make it out of preschool.
Suspiciously, your hyperlinks did not work.
I'm still missing the value in it. We are not scouting judges. We are comparing them. Right? And, for a valid comparison, one that is statistically significant, the key is a stable comparator. We have that. The guidelines range is the equivalent of the universal ball park, or the universal defense. Or the entire universe. It allows us to compare judge behavior in all types of cases. And our numbers will answer your proposed questions without the application of Redmond's Coefficient. If XXXX comes in below the range in drug cases, our numbers tell us that, and we know not to enter into a low-end plea agreement.
What if we created two sets of numbers: one based on Redmond's Coefficient, and the other based on a straight statistical comparison with the Guidelines range? Or are we doing that? Is Redmond's Coefficient like a bonus? Is it like a Lorenzo Cain bobblehead? Because if so, I'm not going to argue against it. I love bobbleheads.
So, should Clayton Kershaw's ERA depend upon the team he faces? Should he be allowed 2 earned runs per inning when he faces the Cards because the Cards own him? Should he not be allowed any earned runs when he faces the Cubs because the Cubs are, well, the Cubs?
Have you written Rob Manfred a letter about this yet? Can you set up a fantasy baseball league where the stats are based on Redmond's Coefficient?
Carl (at least the response he was writing before I got in first)
Hilariously enough, this is the unfinished response I started for Dan:
I think it's more like adjusting the ERA based on the park the team is playing in (park factor) or the defense they pitch in front of. The same fly ball out in Kauffman might be a home run in Yankee Stadium. Just like a low end sentence might be a poor result with a really favorable judge, but it might be a good result with a tough judge.
The league ERA in Kauffman is lower than it is in Yankee Stadium. This is true even when other factors are accounted for. So a pitcher with a 4.50 ERA who plays for the Royals is a worse pitcher than one with a 4.50 ERA who plays for the Yankees.
So if the league average ERA is 4.50, this is like the SE. Getting the average ERA or the low end is an average result. But if a certain judge always gives high end of the range on child porn cases, or another judge always gives downward variances - because he/she thinks the use of computer enhancement is bullshit, that should be accounted for.
Just like the SD will be worse for certain judges than other judges. Getting a 20-month variance (below the Low end (SE)) from XXXX will probably be a hell of a lot harder than in front of XXXX.
What Carl actually wrote
I think we're scouting judges against the guidelines. And we're scouting our own performance against what the judges usually do (Redmond Coefficient?).
Like a Rockies pitcher with a 4.50 ERA is probably better than a Royals pitcher with a 4.50 ERA (adjusting for home park and defense).
I cannot believe that Carl just conceded that a Rockies pitcher is "probably better" than a Royals pitcher.
What the fuck is going on around here?
I'd also note the phrase "against the guidelines" Carl used in the first sentence. I think that is exactly right. The Guidelines do not adjust based on the courtroom or the judge (like ERAs and ballparks).
I feel like a member of the Sentencing Commission.
What the fuck is going on around here?
Let's continue this email until the end of time.
The guidelines comparator stays in the equation, always. But our current assumption of a low-end default is just a starting point. And it will probably be the ending point with some Judges, like XXXX. But that's not universally true. Judge XXXX says that he starts in the middle of the guideline range, and after looking at all of his drug sentences, I believe him. Evaluating whether a government recommendation influences his sentencing decision seems important. Anecdotally, I don't think it influences XXXX.
Dan, I will set up the database so that if you prefer to ignore the judge deciding the sentence, you can.
I want a XXXX bobblehead.
I can probably make this happen. Karen and I had personalized bobble heads on our wedding cake. Ordered from England.
I have my own bobblehead as well. I thought everyone did. I think some kid in Asia made mine. It is like the bobblehead equivalent to a blood diamond.
I don't want to ignore the judge. I think I want the option to ignore your coefficient. Can we have it both ways? Will the numbers tell me where the judge falls with respect to the guidelines range? Or will the numbers tell me where the judge falls with respect to some point created by Redmond's Coefficient? Do I get to know both of those things?
And yes, Hansmeier's Coefficient is in its development stage. I'm researching Ricky Henderson's stolen-base record as we speak . . . .

Thursday, June 11, 2015


The new Computer and Internet Monitoring Program (or “CIMP” -- not to be confused with the amusing abbreviation for “simpleton” so often hurdled at the author as a child) is off to a rocky start. The Tenth Circuit, in this week's opinion in US v. Ullman, just stated that the CIMP language authorizing USPO to impose “restrictions and/or prohibitions related to: computer and Internet use,”
standing alone, would impermissibly impose a greater deprivation of liberty than reasonably necessary because it suggests that the Probation Office may completely ban a means of communication that has become a necessary component of modern life.
The court also remarked that such a condition, “standing alone, is unnecessarily ambiguous,” and it “caution[ed] that adjudicating further appeals because of the ‘restrictions and /or prohibitions’ language is not a valuable use of our limited judicial resources.” So the defendant wins, right?

Not so fast. The Tenth Circuit upheld the condition because the district court, in the course of denying the defense objection to the USPO petition to add this condition, had remarked that the defendant “has not been prohibited from using his computer, cell phone, or any other electronic appliance with internet access.” Characterizing this remark as “unambiguous” and “the controlling version of the modified condition,” the Tenth Circuit upheld the modified condition. Does this now mean that the defendant is authorized to use his “computer, cell phone, or any other” Internet device? And should we now be arguing in appropriate cases that district court findings about what has or has not been done in the past may actually be authoritative limiting constructions of orders being challenged?

The Ullmann Court rejected a nondelegation challenge to the condition as well, again relying on the district court’s efforts to reshape the CIMP language, in particular, the district court’s statement confirming that it

retains control over decisions affecting the scope of Ullmann’s punishment, such as whether he can access the Internet, and delegates to the Probation Office only ministerial issues, such as the choice of monitoring software.

Ullmann makes clear that the unadorned CIMP condition is invalid, but it fails to answer many questions. For example, if the CIMP condition is challenged, should the district court replace it with an unambiguous condition or just refer to Ullmann and say this has already been resolved by the Tenth Circuit? Remember that 18 U.S.C. § 3583(f) requires district courts to direct USPO to

provide the defendant with a written statement that sets forth all the conditions to which the term of supervised release subject, and that is sufficiently clear and specific to serve as a guide for the defendant’s conduct and for such supervision as is required.

The CIMP language certainly doesn’t meet this standard, but it’s hard to see how any language in the Ullmann opinion does, either. It will be interesting to see whether USPO comes up with a new policy that actually provides such guidance.

-- Tom Bartee