Friday, November 28, 2014

Proposition 47 Revisited

In earlier posts, we discussed California's recently-enacted Proposition 47 (reducing some felonies to misdemeanors) and the Collateral Consequences Resource Center. Well, it turns out the Resource Center has a good information on Proposition 47, available here. David Freund, an Assistant Federal Defender in Wichita, noticed the post. Here's a blurb from it on the importance of the retroactive effect of California's new law:
While Proposition 47 gained popular support as a way of reducing California’s prison population, its broadest and most significant long-term effect may be to reduce the impact of collateral consequences on people in the community.  For criminal defense lawyers, Proposition 47 offers a significant way to reduce a client’s exposure in subsequent prosecutions.

From Dave:
Prop 47 is definitely something to keep in mind if you handle federal cases, and if you have any state court clients with prior California convictions for covered offenses.

With the passage of Proposition 47, certain low-level, nonviolent felonies can now be changed to misdemeanors on old criminal records. If you or someone you know has a prior criminal record with a felony record for any of the following crimes, you may qualify to remove the felony from your record and change it to a misdemeanor:
Shoplifting, i.e. Commercial Burglary of $950 or less of a Store during Business Hours (PC §459) 

Forgery of $950 or less (PC §470-476)

Fraud/Bad Checks of $950 or less (PC §476a)

Grand Theft of $950 or less (PC §487)
Petty Theft/Shoplifting of $950 or less (PC §§484, 484/666)

Possession of Methamphetamine (HS §11377)

Possession of Controlled Substance (HS §11350)

Possession of Concentrated Cannabis (HS §11357(a))
Receiving Stolen Property of $950 or less (PC §496)

Remember, these are prior California convictions. Keep this information handy in case you run into one in one of your cases.  

Thursday, November 27, 2014

DOJ And The Federal Prison Crisis

Johanna Christansen is the appellate division chief for the Federal Public Defender for the Central District of Illinois, an office also referred to as the Seventh Circuit Federal Defender. Among other things, Johanna runs a listserve (to subscribe to her once-a-week email service go here), summarizes 7th Circuit cases, and tracks issues pending in the Seventh Circuit. In her last email, she discussed this DOJ memorandum:

A memorandum issued by the Attorney General Office of Inspector General indicates that one of the critical challenges for the Department of Justice at this time is the “federal prison crisis.”  The memorandum states that the DOJ continues to face two interrelated crises in the federal prison system. First, despite a slight decrease in the total number of federal inmates in 2014, the DOJ is projecting that the costs of the federal prison system will continue to increase in the years ahead, consuming a large share of the DOJ’s budget. Second, federal prisons remain significantly overcrowded and face a number of important safety and security issues.
Of course, these concerns affect our clients who are facing terms of imprisonment in the BOP and should be considered when sentences of incarceration are imposed.

We thank Johanna for this information, and we encourage you to sign up for her listserve and to read this memorandum (and to use it if you can). 

Wednesday, November 26, 2014

Sock, Drugs, and Rock 'n Roll

Socks and drugs are before SCOTUS in January. Or, more precisely, drugs in socks (rock 'n roll provided by Buffalo Daughter). Guest blogger Michael Sharma-Crawford, an immigration attorney with the Kansas City firm Sharma-Crawford, is counsel of record in the case pending before SCOTUS, Mellouli v. Holder. The issue:
Whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act.
From Michael, 

Moones Mellouli was a lawful permanent resident. He was arrested for DUI in April 2010. At the jail he was found to have a couple of pills in his sock. The jail “identified” the pills as Adderall and he was charged with trafficking contraband. A plea was negotiated to possession of drug paraphernalia (to wit: a sock) but no specific drug, only the Kansas Uniformed Controlled Substance Act was mentioned in the amended information.  

Matter of Paulus, 11 I&N Dec. 274 (BIA 1965) is valid controlling authority in this factual scenario. As a lawful permanent resident, Mr. Mellouli was only subject to a ground of removability, thus the burden to prove removability belongs to DHS. Paulus holds that if the record of conviction is silent as to the drug and the state criminalizes drugs that are not included in the Federal schedule, removability cannot be proven. Documents which are admissible to determine the conviction are listed at 8 C.F.R. §1003.41.

DHS instituted removal proceedings. Using the police reports and the prior charging document the Immigration Court held that Mr. Mellouli was removable (those documents are not permitted pursuant to 8 C.F.R. §1003.41). The IJ ordered Mr. Mellouli removed and ignored Paulus as did the BIA in upholding the IJ’s decision. The 8th Circuit Court of Appeals upheld the BIA in deciding that despite Paulus’ explicit language, the Kansas conviction “relates to” a crime involving a controlled substance because it is “involving other conduct associated with the drug trade in general.” Matter of Martinez Espinoza, 25 I. & N. Dec. 118, 121 (BIA 2009). Moncrieffe v Holder seems to explicitly overrule such a broad brush approach to comparing criminal offenses to immigration consequences.

The question presented reverts to the original question in Paulus: does the government have to prove the drug for which the paraphernalia existed as a substance defined in 21 U.S.C. §802?

From the criminal side,

The ramifications of this case in criminal law have to do with proof. In Mellouli, as Michael describes, police reports and dismissed charging documents were  used to show the substance was Adderall. For ACCA or similar purposes, SCOTUS has, so far, limited the type of documents that can be used as proof when the modified categorical approach is applied. The Court talked about this last term in Des Camps, and will probably again this term in Johnson v. U.S., the sawed-off shotgun case. In Mellouli, the Court may also reach the question of whether a statute that "relates to" multiple substances is divisible in the first place.

Kate Evans at Federal Immigration Litigation Clinic at the University of Minnesota Law School picked up the case and filed for certiorari.

Thanks to Michael for guest blogging.

-- Melody

Tuesday, November 25, 2014

On Legal Writing: Redmond v. Hansmeier

From First Assistant Federal Defender Kirk Redmond:
End sentences with a preposition if you like. Rethink using Roman numerals for headings. Drop your citations to footnotes. Don't use Times New Roman (or Courier, you heathen). Avoid intensifying adverbs.
Do not assume that your reader knows everything that you do. Use the Oxford comma. Be concise, as this dissent. (Was Hansmeier the clerk?) Forego obscure acronyms (scroll to page 31). Correctly order statutory construction arguments.
Review the basics.

I'll respond to one suggestion (surprise!): relegating citations to footnotes. If you follow the link, the idea is championed by none other than Bryan Garner (the guy who edits Black's Law Dictionary). It is an interesting idea. He gives examples. In those examples, footnotes are a good idea. But the better idea is not to write the sentences in his examples. They are horrible. As a criminal defense attorney, here's my problem with citations in footnotes: courts sometimes think we are full of shit. And the only way we are not full of shit is if our words and ideas actually come from somewhere. So I use citations. All the time. If I were to relegate those citations to footnotes, I would write really long briefs. Because the thing is, citations in footnotes only shorten briefs (or whatever else) if the briefs (or whatever else) do not have that many citations.
Garner notes that he has critics on this issue, including Justice Scalia and Judge Posner. Add Paul Clement.
Don't get me wrong, I'm not anti-footnote. Long citations should be footnoted. Among other things. And, if you decide to go with Bryan and Kirk, I won't hold it against you. But the key, at least for me, is to learn to write shorter citations. Do you need to cite to docket entry No. 1? Try D.E.1. Need a pinpoint cite? D.E.1 at 1. Page 47 of Volume 1 of the Record on Appeal? How about something like R1 at 47. Or maybe just R1 47. The Tenth Circuit's Rules unfortunately encourage long citations (page 106). But the Rules also encourage you "to include a footnote in the briefs at the point of the first record citation to confirm the citation convention." I call this a loophole.
The other stuff is spot on (although I have no intention of abandoning my Roman numerals just yet).

Dan's premise that courts sometimes think we are full of shit is correct, and motivates my reasoning to drop cites to footnotes. The footnote offers a venue for fuller exposition of the case quote. After presenting the rule in the text, a footnote provides a place to set out multiple cases in support of that rule, with all of the relevant language laid out for the court. Remember your third grade math teacher exhorting you to show your work? Kind of the same thing here. This block of quotes would kill the narrative flow in the text, but works just fine in a footnote. I'm not arguing that your brief should look like a law review article, with three lines of text above 3/4 of a page of footnotes, but full exposition of the language upon which you rely is good for your credibility.

Dan's other suggestion about shortening record cites is completely right. A hybrid of the approaches makes sense to me. Drop a footnote when you need, and leave short citations in the text.

Monday, November 24, 2014

More On ACCA: The Reach of the Categorical Approach

We talk about the Armed Career Criminal Act (ACCA) quite a bit. It is the provision that punishes illegal gun possession with a 15-year mandatory minimum if the defendant has 3 or more prior violent felony or serious drug offense convictions. In determining whether a prior conviction qualifies as either of these things, the Supreme Court has instructed courts to use the categorical approach (or a modified version of it). The gist is that, when determining whether a prior conviction is a violent felony (or less often a serious drug offense), courts look only to the elements of the prior offense of conviction and not to the defendant's actual conduct. The approach seeks to avoid "subsequent evidentiary enquiries into the factual basis for the earlier conviction."
This recent Second Circuit decision discusses the contours of the approach. And, in doing so, the Court extends the categorical approach to another ACCA enquiry: whether prior convictions were committed "on occasions different from one another." This is also a requirement under ACCA. It typically comes into play when an individual goes on some sort of a spree (burglary, robbery), and it is unclear whether the crimes committed during that spree were committed "on occasions different from one another." Of note, the holding is consistent with Tenth Circuit precedent (see footnote 3).
Under plain error review, the Court vacated the sentence in this case and remanded for resentencing. It held that the district court relied on improper documents, including statements made in the PSR which drew from, inter alia, "arrest records" and "criminal complaints sworn to by attesting police officers."
It further noted that it is the government's burden to prove that the prior offenses happened on different occasions. "If evidence is not available," the government loses.   
At the end of the decision, the Court offers a nice, four-point summary (we recommend it).
Practically speaking, without police reports and the like, it is likely much more difficult for the government to establish that two close-in-time offenses were committed on different occasions. Especially if the available permissible documents are boilerplate charging documents and judgments. Those documents might lack the necessary detail the government needs to put your client in prison for a really long time. 

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.