Sunday, December 4, 2016

Changes to Rule 41

As of December 1, 2016, a federal magistrate judge can issue a warrant that authorizes a federal agency to search multiple computers, cell phones, and other data storage devices across the country and overseas. Essentially, with a single warrant issued in a single district, the FBI can remotely hack into data sources well beyond the borders, as long as the target has taken action to protect their location.

The Electronic Frontier Foundation breaks down the implications of this massive power expansion: "this change would grant authority to practically any judge to issue a search warrant to remotely access, seize, or copy data relevant to a crime when a computer was using privacy-protective tools to safeguard one's location." An effort to protect privacy could actually make one more susceptible to government intrusion. This is less about the means by which agents may search and more about the geographic and jurisdictional reach of a particular court. Google, joining about 30 other agencies commenting on the rule change, called it a "monumental" Fourth Amendment violation.

Here is the actual language:
A magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if: (A) the district where the media or information is located has been concealed through technological means; or (B) in an investigation of a violation of 18 U.S.C. § 1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts.
The second change, (B), is of less concern; the first, however, has drawn criticism for its vagary and the possible unintended consequences. Possible impediments to judicial review include ex parte application procedures and the invocation of good faith and qualified immunity to escape actual judicial resolution of substantive challenges, according to Congressional Research Service, in Digital Searches and Seizures: Overview of Proposed Amendments to Rule 41 of the Rules of Criminal Procedure

The other controversy swirling is how the rule was changed--by a rather obscure judicial rule-making committee that has power to correct mistakes or change procedure. But this change is substantive, and many believe it should have been subjected to full Congressional scrutiny.

Thursday, December 1, 2016

Slip Sliding Away (Subtitle: Stingray ugh).

The information's unavailable to the mortal man
We're working our jobs, collect our pay
Believe we're gliding down the highway
When in fact we're slip slidin' away

Slip slidin' away
Slip slidin' away
You know the nearer your destination
The more you're slip slidin' away

Paul Simon, 1977

The 7th Circuit recently released an interesting opinion regarding the use of Stingray technology. In United States v. Patrick the 7th Circuit tackles "the first court of appeals case to discuss the use of a cell-site simulator."

The appeal is (of course) decided on other grounds but the court seems interested in giving some hints on the issue of how they might rule if they needed to. The majority doesn't seem too offended by the use of Stingray. The majority discusses the open question of whether the use of Stingray could be a search in the first place. The majority mentions two paths - pen register type view and GPS type view. They seem to be leaning towards the pen register category.

The majority also discusses that the current Fourth Amendment jurisprudence does not require "that search warrants also must include a specification of the precise manner in which they are to be executed."

The majority concludes that they don't have to reach the Stingray issue as the defendant had a warrant for his arrest, was wanted on probable cause, and was taken into custody in a public place. Therefore there was no expectation of privacy, and therefore mechanism of discovery is irrelevant.

There is a strong dissent written by Chief Judge Wood. It is worth a read. Judge Wood does not seem pleased in how the government has "purposefully concealed the Stingray's use from the issuing magistrate, the district court, defenese counsel, and even this court." Chief Judge Wood shows concern about the abilities of Stingray, labelling it is "much more than a high-tech pen register." Her opinion also mentions the information the court would need to make a decision on the technology, and the extent that the record is lacking due to the government's actions.

We should see more opinions coming down on these types of technology. As defense counsel, we hope to see more skeptical judges like the dissent here preventing our clients' Fourth Amendment rights from slip sliding away.

Tuesday, November 29, 2016

Third Chair: Summer Intern Program

The Kansas FPD is pleased to introduce Third Chair, a 2017 summer criminal defense clinic for law students who are interested in public service. Our goal is to develop diversity in the field and to provide first-hand experience in holistic public defense.

The program begins May 30, 2017, with options for either a five- or ten-week program based in our Topeka office. The class will be limited to eight students. This is an unpaid internship, however, we will work with schools for credit or fellowships, and we are exploring other sources of funding. If you are interested in sponsoring a student, please let us know.

Please share this with anyone who might be interested. More information is available on our website at  The application deadline is February 24, 2017; applications will be accepted on a rolling basis. Please direct any questions to

Tuesday, November 22, 2016

No, Mr. Prosecutor, you may not call the large black defendant "King Kong"

Looking for some frank talk about race and criminal justice?

United States District Court Judge Gergel of South Carolina and the Fourth Circuit call it as they see it: Referring to a large black defendant during a capital sentencing proceeding as "King Kong," a "caveman," a "monster," and a "beast" violates due process, especially when combined with the elicitation of evidence that the defendant once had an affair with a "blonde-headed lady" (read: white), and that he had assaulted a white man who, while in a coma, dreamt he was being chased by murderous black Indians.

Judge Gergel (who embedded the above image in his order granting federal habeas relief): "Like the injection of the 'black Indians' dream and the Petitioner's white lover, the King Kong reference is a not so subtle dog whistle on race that this Court cannot and will not ignore."

The Fourth Circuit (affirming Judge Gergel's order):

The prosecutor's comments were poorly disguised appeals to racial prejudice. It is impossible to divorce the prosecutor's "King Kong" remark, "caveman" label, and other descriptions of a black capital defendant from their odious historical context. And in context, the prosecutor's comments mined a vein of historical prejudice against African-Americans, who have been appallingly disparaged as primates or members of a subhuman species in some lesser state of evolution. We are mindful that courts "should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning." Donnelly, 416 U.S. at 647. But here, "the prosecutor's remarks were quite focused, unambiguous, and strong." Caldwell v. Mississippi, 472 U.S. 320, 340 (1985). The comments plugged into potent symbols of racial prejudice, encouraging the jury to fear Bennett or regard him as less human on account of his race.

The "King Kong" comment especially drew on longtime staples of racial denigration. That comment was "not just humiliating, but degrading and humiliating in the extreme." Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 285 (4th Cir. 2015) (en banc) (internal quotation marks omitted). Likening Bennett to King Kong in particular stoked race-based fears by conjuring the image of a gargantuan, black ape who goes on a killing spree and proceeds to swing the frail, white, blonde Fay Wray at the top of the Empire State Building. Petitioner is right to note that the film is regarded by many critics as "a racist cautionary tale about interracial romance." Br. of Appellee at 40 (quoting Phillip Goff et al., Not Yet Human: Implicit Knowledge, Historical Dehumanization, and Contemporary Consequences, 94 J. Personality & Soc. Psychol. 292, 293 (2008)).


The record here tells the story. There is no need for elaboration on our part. The criminal justice system must win the trust of all Americans by delivering justice without regard to the race or ethnicity of those who come before it. The many instances where the system performs its duties admirably help to build the trust of the people. A proceeding like this one threatens to tear that trust apart.

Sunday, November 20, 2016

Condition Creep

Supervised release conditions sometimes expand quietly and in small increments, while we are not paying close attention. Then one day, these conditions (which are not necessarily statutorily drawn) are accepted as commonplace restrictions on our clients' rights. Condition creep. Certainly, constitutional rights can be limited while one is on supervision or because of one's status as a felon or sex offender. But constitutional rights cannot be stripped away wholesale.

Pending before the Supreme Court is Packingham v. North Carolina. Cert was just granted October 28, so the case is neither fully briefed nor set for argument. Mr. Packingham, a North Carolina resident, was a convicted sex offender. Six years after his conviction, North Carolina made it a felony for registered sex offenders to access certain websites, including Facebook, YouTube, and the New York Times. This sex offender posted on Facebook, giving thanks to God for the dismissal of a traffic ticket, no doubt the sort of conduct state lawmakers sought to curtail. But he did not get away with his crime -- a vigilant internet Javert spotted the offending post and Mr. Packingham was convicted.

The issue before the Supreme Court is whether the law violates the First Amendment, both on its face and as applied to the petitioner. The cert petition discusses at length similar supervised release conditions, noting that several federal courts have rejected supervised release conditions that compromise constitutional rights. In fact, Packingham tracks issues that the Tenth Circuit addressed in United States v. Ullman, 788 F.3d 1260 (10th Cir. 2015). 

Watch for condition creep, especially if your client has any sort of sex-related prior convictions and regardless of the nature of the current offense. See United States v. Martinez-Torres, 795 F.3d 1233 (10th Cir. 2015).  So make the objections, and we will keep an eye on Packingham.

Thursday, November 17, 2016

Bell and Kansas Robbery

Super, you say. Missouri second-degree robbery is not a crime of violence. But my client was convicted of Kansas robbery. Lot of help this blog is.

Well, friend, take heart. The parallels between the Kansas and Missouri robbery statutes are impressive. According to Bell, Missouri robbery is not a crime of violence because “in Missouri a defendant can be convicted of second-degree robbery when he has physical contact with a victim but does not necessarily cause physical pain or injury.” The same is true in Kansas.

Your bellwether case is State v. McKinney. The defendant was convicted of robbery. The victim testified that the defendant pushed her as he grabbed her purse. The defendant testified that he grabbed her purse, but did not shove her. The Kansas Supreme Court held that merely grabbing the victim’s purse, causing physical contact with her arm, sustained a robbery conviction. Same as Bell. Not a crime of violence.

--- From Kirk Redmond

Tuesday, November 15, 2016

Bell and the Commentary to USSG § 4B1.2

Here’s what the government will say:

“Maybe Bell is right that robbery doesn’t have a force element. But there’s more than one way to skin a crime of violence. The commentary to § 4B1.2 said (prior to the August 1, 2016 amendment) that the definition of a ‘crime of violence’ includes ‘robbery’. And because your client was convicted of robbery, she has been convicted of a crime of violence.”
Not so.
A quick post-Johnson review. After Johnson smacked down the residual clause, there are two ways for something to be a crime of violence under § 4B1.2. First, it can be an enumerated offense: burglary, arson, extortion, or the use of explosives. I don’t see robbery anywhere in that list. Second, it can be an offense that involves the use, attempted use, or threatened use of physical force. And as Bell establishes, robbery doesn’t qualify there, either. So what to do with the commentary to 4B1.2 listing robbery as a crime of violence?
The First Circuit answered that question in United States v. Soto-Rivera. Remember, guidelines come in two parts: text and commentary. The text is binding. The commentary is not. When the commentary is inconsistent with the text, the text controls. And after Johnson, commentary that says an offense is a crime of violence is inconsistent with the text when that offense is not burglary, arson, extortion, the use of explosives, and lacks a force element. As a Seventh Circuit decision expounding on Soto-Rivera explains,
Under § 4B1.2(a), "crime of violence" means subpart 1 (the elements clause) and subpart 2 (the four specific crimes followed by the residual clause). If the application note's list is not interpreting one of those two subparts---and it isn't once the residual clause drops out---then it is in effect adding to the definition. And that's necessarily inconsistent with the text of the guideline itself.

Bell followed the First and Seventh Circuits, holding that “[p]ost–Johnson . . . § 4B1.2's commentary, standing alone, cannot serve as an independent basis for a conviction to qualify as a crime of violence because doing so would be inconsistent with the post-Johnson text of the Guideline itself.”
The Tenth Circuit agreed, long ago, as we blogged about here. In United States v. Armijo, our Circuit held that commentary which expanded the text could not support classifying a prior offense as a crime of violence. After Johnson, a crime of violence must be an enumerated offense (burglary, arson, extortion, use of explosives) or have a force element. As Bell explains, a prior offense which does not fit those categories is not a crime of violence. At least prior to the August 1, 2016 amendments. More on that later.

---From Kirk Redmond