Sunday, June 25, 2017

Trial Series: How to subpoena federal agents

At some point, you will need to subpoena a federal agent to testify at trial. Usually this will occur when: (1) a witness gives a statement to the agent but (2) the witness denies making the statement. You cannot impeach the witness with the agent’s written report (unless you can prove that the witness adopted it, which is rare) because the report is the agent’s statement — not the witness’s. To be able to prove that the witness said something different to the agent, you will have to call the agent to the witness stand. And to do that, you will need to subpoena that agent.

Subpoenaing a federal agent is more complicated than subpoenaing the usual witness. That is so because of a United States Supreme Court case from 1951, United States ex rel. Touhy v. Regan, which held that executive-department agencies could validly promulgate regulations that restrict their employees from testifying. 340 U.S. 462 (1951). Nearly every agency now has Touhy regulations scattered about the Code of Federal Regulations. If you do not comply with those regulations, the court will quash your subpoena.
The first step is to find which CFR applies, which turns on which agency the witness belongs to. Here are some of the more common agencies you might need testimony from, along with the corresponding CFRs that cover that agency:

Department of Homeland Security (including Immigration & Customs Enforcement)
6 C.F.R. §§ 5.42 — 5.49
Department of Justice (including Federal Bureau of Investigation & Drug Enforcement Administration)
28 C.F.R. §§ 16.21 — 16.29

These regulations spell out who to serve. For instance, for a DHS agent, you must serve your demand on its Office of General Counsel. 6 C.F.R. § 5.43(a). For a DOJ agent, you serve the demand on the Assistant United States Attorney handling the case. 28 C.F.R. § 16.23(c).
These regulations also set out how to make your demand. For a DHS agent, you must specifically put forth, in writing, the nature and relevance of the information you seek. 6 C.F.R. § 5.45(a). For a DOJ agent, on the other hand, you must supply a written statement, by affidavit if feasible, setting forth summary of testimony sought. 28 C.F.R. § 16.23(c).

Finally, these regulations set out what the agency will consider in deciding whether to permit the agent to testify or produce documents. For DHS agents, the factors are contained in 6 C.F.R. § 5.48, and for DOJ agents they lie in 28 C.F.R. § 16.26.

Practically speaking, you should:

1. At least 45 days before trial, obtain a trial subpoena under Rule 17(b) for any agent that you might need to impeach a witness.

2. Draft a letter that contains: (a) the request for testimony or documents that complies with the applicable regulation (i.e. affidavit, etc.); (b) an argument as to why the agency should allow the testimony or release the documents that corresponds to the factors the agency is supposed to consider in making its decision; and (c) a deadline for their response.

3. Serve the subpoena and the letter on the appropriate official.

What happens if the agency denies your request? Or never responds?
Stay tuned . . . .
----Branden Bell

Tuesday, June 20, 2017

Trial Series: Dying declarations

In which we assume that dying is stressful.

The rationale for the dying declaration hearsay exception is that “no person, who is immediately going into the presence of his Maker, will do so with a lie upon his lips.” That notion seems problematic in a nation where 1 in 4 citizens are atheists, presumably unconcerned with the impact of a falsehood on their chances in the afterlife.
But the more profound problem with presuming the reliability of dying declarations is how it ignores what happens to a brain under stress. To talk about that, we have to talk about the physiology of the brain. Let’s start with the amygdala.
Image result for amygdalaSo, hi! Thanks for staying. Anyway, the amygdala. It’s the Chaos Muppet of the brain (think Cookie Monster). The amygdala evaluates incoming stimuli for emotive content, tells us when we need to freak out, and helps us freak out by flooding the brain with the stress hormone cortisol.
 Acting as a governor on the amygdala is the prefrontal cortex. The prefrontal cortex is the executive center of our brain, regulating decision-making and judgment (think Kermit). The prefrontal cortex is designed to stop the amygdala from overreacting to every damned thing, balancing our emotional responses. But the prefrontal cortex, awash in cortisol, can’t control the amygdala in highly stressful situations. When the prefrontal cortex gets overwhelmed by cortisol, “quite simply, we lose it.
Dying brains don’t carefully calculate the downside of displeasing their Maker with a falsehood. The precipice of death is not a placid, reflective place where we carefully calibrate the truth of our words. Instead, awash in stress hormones, a dying brain is likely to cloud objective truth.

While dying declarations may be admissible as hearsay, they aren’t probative. Argue the science in support of a Rule 403 objection.

---Kirk Redmond

Sunday, June 18, 2017

Where's Waldo's cell phone?

More specifically, what must the government do before it can track Waldo's cell phone? The United States Supreme Court will finally answer that question next term, in Carpenter v. United States. Here is the SCOTUSblog page if you want to follow along. The question presented is: 
Whether the warrantless seizure and search of historical cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days is permitted by the Fourth Amendment. 
With Mr. Carpenter represented by the ACLU, and amicus briefs (so far) by the Electronic Frontier Foundation and the Cato Institute, the case should be well lawyered.

By the way (as those of you who keep up with our Issues Pending summaries know), the Tenth Circuit has a similar claim pending in United States v. Thompson, No. 15-3313 (argued May 10, 2017).

Be sure to preserve this claim if you've got a case involving the warrantless search and seizure of these kinds of cell-phone records.

Thursday, June 15, 2017

Let's talk about forensic science: week one

Your friendly blog post writer was fortunate enough to attend the National Forensic College last week at Cardozo Law school in New York. The college provided a six day intense focus on forensic science issues ranging from DNA to digital evidence. So the Thursday spot on the blog will be used to share a few of the very helpful tips that were passed on during this program.

We start with a topic that has been mentioned before, but deserves greater discussion - the PCAST report. As we discussed back in October, the PCAST report was prepared by leading scientists and engineers for the purpose of answering questions created by the 2009 National Resource Counsel report on strengthening forensic science in the United States. As we know now, this administration is not interested in answering those questions or strengthening forensic science.

Everyone should at least read the executive summary of the report. It is 20 pages and does a great job summarizing their findings. For example do you have a case where a bitemark is used as evidence? PCAST is not impressed: "Bitemark analysis is a subjective method. Current protocols do not provide well-defined standards concerning the identification of features or the degree of similarity that must be identified to support a reliable conclusion that the mark could have or could not have been created by the dentition in question."

This week starts with an easy but important concept from those early pages - the difference between foundational validity and validity as applied. Foundational validity establishes that the scientific method used is repeatable, reproducible, and accurate. That means that a person performing the test can perform the test the same way multiple times and get the same result. It also means that a different person can do the same test the same way and get the same result. Finally, it means that result is accurate. If all three are met, then a certain method can, in principle, be reliable. This corresponds with the legal requirement in Rule 702(c) of using "reliable principles and methods."

Validity as applied means that the method has been reliably performed in practice. This means that a foundationally valid method can still be inadmissible if the person performing the test does not properly implement an otherwise reliable method. This corresponds with Rule 702(d) while requires an expert to "reliably apply the principles and methods to the facts of the case."

Keep these concepts in mind as we discuss some tips from specific areas of forensic science in the next few weeks.

Tuesday, June 13, 2017

Innocent until shackled

When you think of the term innocent, what image comes to mind? If you are like me, you think babies or puppies (maybe kittens if you’re a cat person). The thing I have never associated with that word was full body shackles. In a court system that stands on the phrase “Innocent until Proven Guilty,” one would assume that innocent people should not be brought to court in full body shackles. The Court of Appeals for the Ninth Circuit has just taken on this problem in United States v. Sanchez-Gomez.

Four defendants petitioned for writs of mandamus to challenge a district wide policy for shackling all pretrial detainees without any form of individual determinations. Although they did not get the mandamus relief (mainly because the policy was not in effect at the time), the Court of Appeals did slap the district court’s hands a bit. 
Image result for chained bearThe policy in question came about as a recommendation from the US Marshals Service. The district court deferred to the Marshals’ recommendation, and determined that all pretrial detainees would appear in shackles. The en banc court applied Gerstein v. Pugh, 420 U.S. 103 (1975), to exercise its supervisory power. Even though all of the defendants’ cases had ended and the policy was no longer in effect, the en banc court seemed to be on a mission to send a message. “A presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom, not like a bear on a chain.”

The court’s bottom-line holding:
We now clarify the scope of the right and hold that it applies whether the proceeding is pretrial, trial, or sentencing, with a jury or without. Before a presumptively innocent defendant may be shackled, the court must make an individualized decision that a compelling government purpose would be served and that shackles are the least-restrictive means for maintaining security and order in the courtroom. Courts cannot delegate this constitutional question to those who provide security, such as the U.S. Marshals service. Nor can courts institute routine shackling policies reflecting a presumption that shackles are necessary in every case.
Interestingly enough, this decision not only had a few dissenters but also creates a circuit split. The dissent’s main problem was the lack of authority to make this decision. They argued that the case was moot and did not qualify for an exception. All in all, they thought the majority had overstepped its boundaries.
Given the new circuit split, maybe the Supreme Court will take up this cause and send a message to the country that shackles taint the appearance of innocence.

---Contributed by Doretta Goolsby, UMKC Law 2018

Sunday, June 11, 2017

Not a Crime of Violence: KS Dangerous Weapon Agg Robb

Committing a robbery with a dangerous weapon; it sure sounds like a crime of violence. But not to Jeff Griffith, a Wichita CJA panel lawyer. Last Friday, Jeff persuaded Judge Melgren that robbing someone in Kansas while possessing a deadly weapon was not a crime of violence. And he was right. 

Jeff asked the Court to follow United States v. Parnell, where the Ninth Circuit decided that Massachusetts armed robbery is not a violent felony. Why? Because in Massachusetts, robbery can be committed by minimal, non-violent force. And the “armed robbery” component of the statute? Well, in Massachusetts, the armed robbery statute does not require a weapon be used or displayed, or even that the victim be aware of it. It is enough that the robber have a knife in his back pocket, which does not convey a threat of force to the victim.

And you know what? Kansas aggravated robbery works the same way. Just like Massachusetts armed robbery, Kansas aggravated robbery requires only that the robber be "armed with" a dangerous weapon, not that he use it or that the victim be aware of its presence. We know that Kansas robbery is not a crime of violence, and we know that possessing a dangerous weapon is not a crime of violence. (Scroll down to USSG § 4B1.2, Application Note 1.) Adding two things that aren’t crimes of violence together does not produce a crime of violence.

The case is United States v. Edward Walker, D.Kan. 16-cr-10015-EFM, D.E. 47. We’ll send around a pdf of Judge Melgren’s order tomorrow. Congratulations, Jeff.


Thursday, June 8, 2017

We get by with a little help from our friends

It's hard out there for a public defender. Between defending our clients and defending our work ("How can you represent those people?"), sometimes it feels like we're always, well, on the defensive.

And so we are grateful when someone takes time out to recognize us and cheer us on. We at the Kansas Federal Public Defender Office have been lucky to receive two particularly supportive and inspiring visitors to our office this week: veteran trial lawyer and defender trainer Anthony Natale from the Miami, Florida Federal Public Defender Office, and Gideon's Promise* founder Jonathan Rapping.

Thank you, Tony and Jonathan!

*Gideon's Promise trains and supports public defenders. You can find links to many of Jonathan's articles about public defending and criminal justice here.

Tuesday, June 6, 2017

Confidential-informant discovery

Last week we blogged about a district court suppression order, promising to share more goodies from that same order.

Those goodies are several discovery orders relating to a confidential informant, including the AG's CI guidelines in effect at the time the CI was used, and CI suitability reviews and certain other internal documents relating to the CI.

The district court rejected most of the government's relevance, deliberative-process, and overbreadth objections, and carefully balanced the government's claimed "CI safety" interests against the defendant's trial-preparation interests.

Take a look at this order for (1) inspiration for what specific discovery requests to make with respect to a CI; and (2) a step-by-step argument for why the requested items are relevant and discoverable.

Sunday, June 4, 2017

"Drug addiction is generally mitigating . . ."

Continuing with the neurological theme of the last post, there is powerful scientific evidence establishing the long-term effects of methamphetamine addiction, evidence that is relevant to the "history and characteristics of the defendant" under 18 USC sec. 3553(a)(1).

Remarkably, some jurists still debate whether drug addiction is a disease or a product of free will. This distinction often bears on issues of culpability and whether our client is compassion-worthy. In United States v. Hendrickson, 25 F.3d 1166 (N.D. Iowa 2014), Judge Mark Bennett wrote a compelling and detailed sentencing decision that describes this split and "to explain my view that drug addiction is generally mitigating, especially in cases, like this one, where the defendant is both young and has been addicted to drugs throughout adolescence and most of his early adulthood."

Judge Bennett has been a frequent critic of mandatory minimums for low-level addicts. From yesterday's CNN report,
Too often, Bennett says, low-level nonviolent drug addicts dealing to feed their habit end up being sentenced like drug kingpins. . . . "I think it's a miscarriage of justice," Bennett says. 
This article compared former Attorney General Eric Holder's more compassionate approach to low-level drug offenders with current AG Jeff Sessions' call for the most serious charges and the most serious penalties available. Here is Larry Leiser, President of the National Association of Assistant U.S. Attorneys, defending the harsh policy as helping “young people who see people in the community wearing heavy gold and chains and hot cars as a result of their participating in the distribution of these drugs, as opposed to going out and earning an honest living.”

Science dismantles this primitive idea that addiction is just a moral flaw or lack of willpower. Sometimes the court has room for discretion, and in those instances, science is on our side.  The Hendrickson opinion is loaded with references to scientific and government studies on the neurological implications of addiction, e.g. Steven E. Hyman, The Neurobiology of Addiction: Implications for Voluntary Control of Behavior, 7 Am. J. Bioethics 8, 9-10 (2007).  Additionally, see Meredith Cusick, Note, Mens Rea and Methamphetaime: High Time for a Modern Doctrine Acknowledging the Neuroscience of Addiction, 85 Fordham L. Rev. 2417, 2427 (April 2017); and Holley, Mary, Ph.D., How Reversible Is Methamphetamine-Related Brain Damage?, 82 N.D.L. Rev. 1135 (2006); and this from the 2016 (Obama era) Surgeon General's Report, Facing Addiction in America ("Addiction to alcohol or drugs is a chronic but treatable brain disease that requires medical intervention, not moral judgment.").

Postscript: Judge Bennett imposed a lower sentence (31 months) than the prosecutor requested (high end of 46 months) and lower than the defense attorney requested (low end of 37 months).

-- Melody (with thanks to Colorado AFPD Veronica Rossman). 

Constructive possession & 404(b) evidence

Your client is charged with constructive possession of guns and marijuana (with intent to distribute) that were found in his shared house behind a deadbolt-locked bedroom door. Your client's prints were not on any of the drug packaging or guns. He had no key to the lock on the bedroom door. He admits that the house reeked of marijuana, but he says the drugs and guns were not his, and he did not have access to them.

Of what relevance are your client's prior convictions for possession of marijuana and possession with intent to distribute marijuana?

Very little, said the Fourth Circuit last week in a must-read 404(b)-treatise case, reversing the defendant's gun and drug convictions.

Just some of the highlights (note how the court walks through both the relevance and prejudice prongs of the analysis with respect to each category of prior conviction):

The defendant's prior possession conviction was inadmissible to prove his intent to distribute: "[A] defendant's prior conviction for possession of a drug is not relevant to establishing the defendant's intent to distribute a drug at a later time, absent some additional connection between the prior offense and the charged offense." Possession and distribution are "distinct acts" with different intents, purposes and risks.

The defendant's prior possession conviction was relevant to prove his knowledge that there was marijuana in the house (the whole house smelled of marijuana), but he did not contest his knowledge, and the prejudicial effect of the prior conviction far outweighed its probative value: "Due to the lack of evidence connecting Defendant to the drugs inside the locked bedroom and the minimal probative value of the prior possession conviction to establish Defendant's knowledge that the bedroom contained marijuana, there is a strong and unacceptable likelihood that the jury concluded Defendant 'had a propensity for [drug] trafficking and convict[ed] on that basis alone'—the precise result Rule 404(b) forbids."

The defendant's prior possession-with-intent-to-distribute convictions lacked factual similarity and temporal proximity to the charged conduct, and were not relevant to prove his intent to distribute. And, as with the possession conviction, their relevance to prove his knowledge of the presence of marijuana was outweighed by their prejudicial effect. Indeed, "Defendant's prior possession with intent to distribute convictions were arguably even more prejudicial than his prior possession conviction because ‘prejudicial impact is only heightened when character evidence is admitted in the form of a prior criminal conviction, especially a prior conviction for the same crime as that being tried.’"

Monday, May 29, 2017

Trial Series: Challenging Hearsay with Neuroscience

Federal Rule of Evidence 803 sets out three hearsay exceptions for spontaneous events: present sense impression, excited utterance, and then-existing condition. The rationale for these exceptions is that the spontaneous statements are reliable because a person is unlikely to fabricate lies (which presumably take deliberate reflection) while her mind is preoccupied with the stress of an exciting event.

But for lots of complicated reasons explained here (click the link for a primer on peritraumatic dissociation and elevated cortisol levels in the amygdala), that’s not how the brain works. First, “it's not true that people can't make up a lie in a short period of time. Most lies in fact are spontaneous.” Second, the emotional stress attending a crime can fragment and corrupt memories. The assumptions behind the spontaneous event hearsay exceptions are exactly backward. Spontaneity does not enhance reliability; it may compromise it.

Courts are beginning to recognize the fallacy of the rationale behind the spontaneity hearsay exceptions. “As with much of the folk psychology of evidence, it is difficult to take this rationale entirely seriously, since people are entirely capable of spontaneous lies in emotional circumstances…It is time the law began paying attention to such studies.” So, if the government’s case relies on a spontaneity exception, ask the court to view that evidence in light of the science.

-- Kirk

Thursday, May 25, 2017

Evidence suppressed: no reasonable suspicion for traffic stop

We all know that is a traffic infraction to turn without properly signalling in advance, but is it also a traffic infraction to signal in advance but then not turn? The answer is no, at least according to a recent decision in the District of Kansas .

In United States v. Perez-Madrigal, the officer stopped the defendant for that exact reason. He claimed at suppression hearing that he had done the same thing in the past and since nobody objected he assumed it was fine. The government also claimed that the stop fell under the reasonable mistake-of-law doctrine. However, the government was unable to point to a case or statute that supported such a reasonable belief.

The government also claimed that the exclusionary rule should not apply in this context. Not so says the district court. The officer testified that he was trained that this type of stop was acceptable and had performed such a stop multiple times. So, if the exclusionary rule exists to deter officer conduct - "the societal benefits of deterring repeated instances of unlawful traffic stops outweigh the substantial social costs of suppressing the evidence seized as a result of the traffic stop."

Kudos to Branden Bell of the FPD for the suppression win. But the opinion also has some other, blog worthy issues in it. Stay tuned to find out what.....

Tuesday, May 23, 2017

City misdemeanors do not trigger federal gun prohibition

So sayeth the Tenth Circuit this week in United States v. Pauler:
The term "misdemeanor crime of domestic violence" is defined in the pertinent statute as "a misdemeanor under Federal, State, or Tribal law" that "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by . . . a person similarly situated to a spouse, parent, or guardian of the victim." 18 U.S.C. § 921(a)(33)(A). The district court denied Defendant’s motion to dismiss the indictment for failure to state an offense, holding that Defendant violated § 922(g)(9) because he possessed a firearm in 2014 after having been convicted in 2009 of violating a Wichita, Kansas municipal domestic battery ordinance by punching his girlfriend. The sole issue before us in this appeal is whether a misdemeanor violation of a municipal ordinance qualifies as a "misdemeanor under . . . State . . . law" when viewed in the context of a statutory scheme that clearly and consistently differentiates between state and local governments and between state statutes and municipal ordinances. Applying well-established principles of statutory interpretation, we hold that it does not, and we accordingly reverse and remand with instructions for the district court to vacate Defendant’s federal conviction.

Sunday, May 21, 2017

Better sentences with open pleas.

Taking up where the last post left off . . . plea agreements and appellate waivers. The prosecution often insists on broad-ranging appellate waivers when the parties enter a plea agreement. That is one reason our default position should be open (or blind) pleas rather than plea agreements. This default position is even more compelling since AG Sessions has directed the USAOs to seek the most serious punishment available. Not much room for meaningful negotiation there.

Another pretty good reason is that our clients receive lower sentences with open pleas. The numbers bear this out. The U.S. Sentencing Commission, for all of its other faults, is an excellent source of sentencing data. An analysis of the raw data shows:

     Open pleas accounted for almost a quarter of all federal case resolutions in 2015.

     Overall, opens pleas resulted in lower sentences.

     Plea agreements resulted in higher sentences.

The raw data comes from the Sentencing Commission, but the analyses is provided by  Alan Ellis, Esq., and Mark H. Allenburg, in the Westlaw Journal, White Collar Crime: Expert Analysis,Vol. 31, Issue 7, March 2017. This article has more details on fraud and tax sentences, as well as helpful graphs like this one. The raw data should be available to analyze other specific offenses, as well.   


Thursday, May 18, 2017

Supreme Court update: Does a guilty plea prevent an attack on the constitutionality of the statute of conviction?

One of the few criminal related cases set for argument on the October docket is Class v. United States, a case that asks whether a guilty plea prevents the defendant from attacking the constitutionality of the statute of conviction. Or, as the brief for Mr. Class states the issue:
Whether a guilty plea inherently waives defendant’s right to challenge the constitutionality of his statute of conviction. 
Mr. Class was convicted of carrying or having a gun readily accessible on the Capitol grounds. He initially litigated the constitutionality of the statute in district court, without success. He eventually entered a plea agreement that waived his right to appeal the sentence and his right to collaterally attack his conviction or sentence. He appealed to the D.C. Circuit which affirmed his conviction based on the plea waiver. The D.C. Circuit noted the appeal waiver did not contain an "explicit waiver of appeal rights . . . as to alleged errors in the indictment or in proceedings before the sentencing." However, the court held that the plea itself inherently waived Mr. Class' right to attack the constitutionality of the statute.

In his brief, Mr. Class argues that prior Supreme Court cases such as Blackledge v. Perry and Menna v. New York answer the question as to whether the plea inherently waives such a right - and the answer is no. Blackledge permitted such an attack after conviction in the double jeopardy realm and Menna allowed such an attack in a vindictive prosecution claim. If permitted there, why should the defendant be limited when the attack is for unconstitutionality of the statute of conviction?

With all of the recent discussion of plea waivers we had here, and here this case is a good reminder of what rights are lost when a guilty plea is entered. It will be interesting to keep an eye on the outcome of this case and see to what extent a plea really waives appellate rights. Plus it is a gun rights case so we know a separate opinion from Justice Thomas is coming.

Sunday, May 14, 2017

Trial Season

Last Friday, Attorney General Jeff Sessions issued a memo establishing  new and more strident prosecution policies. The highlights (or low points) include:

  • Prosecutors should charge and prove the "most serious, readily provable offense.
  • Most serious offenses are those that carry the "most substantial guidelines sentence, including mandatory minimum sentences."
  • Variance from this policy requires supervisory approval and must be "documented in the file."
  • Recommendations for guideline variance or departures also require supervisory approval and documentation. 
  • Former AG Eric Holder's  2013 and 2014 memos were expressly rescinded; these encouraged conscientious application of harsher charging and sentencing decisions and restricted the use of certain mandatory minimum sentences (e.g., 851s).
The memo is after the jump.

Mr. Holder understandably deemed it an "unwise and ill-informed" reversal. But some argue there is room for a more hopeful reading. Local prosecutors are to exercise discretion, "with the goal of achieving just and consistent results" and "should in all cases seek a reasonable sentence under the factors in 18 USC sec. 3553." Reasonable prosecutors may continue to prosecute reasonably.  

Mr. Sessions acknowledged as much in his recent remarks to a law enforcement audience:
And I trust our prosecutors in the field to make good judgements. They deserve to be unhandcuffed and not micro-managed from Washington. Rather, they must be permitted to apply the law to the facts of each investigation. . . .  I have given our prosecutors discretion to avoid sentences that would result in an injustice.
Reason for hope? It is certainly worth invoking Mr. Sessions' face-value statements in negotiations.  

For now, though, trials may be more common. This could be a good thing; in the last couple of years, as part of some retroactive litigation,  we have reviewed far too many plea agreements (with appellate waivers) that resulted in life or near-life sentences, for little or nothing in return. Can't really do much worse at trial. Maybe this is a chance to change our approach. As Rahm Emanuel observed, crisis is opportunity: "You never let a serious crisis go to waste. And what I mean by that it's an opportunity to do things you think you could not do before.

In the coming  months, this blog will devote some space to trials: evidence, tactics, training.  Please give us your feedback, comments are welcome either on the blog or by email. Look for some guest bloggers. And if you have ideas to share, please let us know. 

-- Melody

Sentencing news

Where do you get your sentencing news? The United States Sentencing Commission has a new resource: Case Law Quarterly. As the Commission describes it, "Case Law Quarterly provides brief summaries of select appellate court decisions issued each quarter of the year that involve the guidelines and other aspects of federal sentencing."

At a slim six pages, the first issue is just the right size to print and read on the airplane or in the waiting room of the doctor's office. My only complaint: The cases are organized by circuit rather than by subject matter. But even then, it's a nice compilation of guidelines and other sentencing cases, and you can see at a glance (in the first sentence of each entry) which cases resulted in sentencing reversals.

Thursday, May 11, 2017

What does the government need to establish importation under USSG § 2D1.1(b)(5)?

One of many enhancements under USSG 2D1.1 involves a two level bump for amphetamine or methamphetamine offenses that "involved the importation" of the drugs or certain chemicals. USSG § 2D1.1(b)(5).

But what does the government need to prove to establish the offense involved importation? Does the government have to establish that the defendant knew the drugs at issue were imported? A recent Ninth Circuit case may create a circuit split on this question. In United States v. Job the Ninth appears to reject a strict liability rule from a Fifth Circuit decision, United States v. Serfass, which held "that the enhancement under § 2D1.1(b)(5) applies irrespective of whether the defendant knew that the possessed methamphetamine had been unlawfully imported."

The  Job court bases their decision on the fact that the district court "made no determinations about the scope of the jointly undertaken criminal activity as required by the Sentencing Guidelines." So the question as to what exactly the government needs to prove seems to be an open question, even in the Ninth Circuit. One question is clear - this enhancement needs to be objected to, especially when the government simply puts on evidence that the drugs were imported without additional proof.

Sunday, May 7, 2017

Immigration consequences? Check once; check twice; check again

A Jamaican citizen and lawful permanent US resident was charged in federal court with trafficking in counterfeit goods.

His appointed criminal-defense lawyer immediately realized the need to research the deportation consequences of any plea. Counsel dutifully contacted an immigration lawyer. That lawyer recommended a plea under a subsection of the criminal-counterfeiting statute that she believed would not expose the client to deportation. The defendant entered the plea and was sentenced to prison for 364 days.

But the lawyers both relied on the wrong version of the statute.

The version that applied to the defendant subjected him to mandatory deportation. As a result, the defendant spent more time in ICE custody than he did serving his prison sentence. The Fourth Circuit finally granted him habeas relief on ineffective-assistance-of-counsel grounds, in an opinion issued last month.

Lesson learned: Check immigration consequences. Check again. Check again.
Image result for immigration consequences

Thursday, May 4, 2017

It was my understanding that there would be no math . . .

I like, many of you went to law school to avoid doing math. The bad news is there is some very helpful information available that might require some math. Blame the Sentencing Commission. The Commission tracks and posts statistics online regarding the sentences involved in thousands of cases. And you can use that data to, for example, make an argument for a less than guideline sentence where certain courts generally follow the guidelines. After all, if the statistics support that more judges are giving lower than guideline sentences, some judges who feel bound by the guidelines may feel more comfortable giving a less than guideline sentence.

We suggest you follow the link and spend some time getting comfortable with the information and think a little how you can use those statistics to get a better plea or to support a sentencing memorandum for a particular client. Maybe math will become your friend!

Monday, May 1, 2017

What to expect when you're expecting a prison term

It's that time of year again. The peonies are about to bloom, the ornate box turtle is out of hibernation, and your clients are headed to prison.

Don't let them go unprepared.

This Thursday, May 4, 2017, from 3 p.m. to 5 p.m. at the Kansas City, Missouri, courthouse, US Probation will be holding its quarterly orientation program for people facing federal prison time. Family and counsel are encouraged to attend. Participants may join by videoconference from Wichita and Topeka.

As we blogged last year, among other things, attendees will learn (or be reminded of):

  • What personal business to take care of before going to prison (utility bills, child support, student loans, pending charges & detainers);
  • How to self surrender;
  • What to take (and what not to take) to prison;
  • What programs are available in prison (educational, vocational, religious, mental health, medical);
  • What to expect with respect to visitation, phone calls, email, etc.; and
  • How federal prisons help prepare clients for release.
At one program last year, a young professional couple who met in a halfway house after each had spent many years in prison spoke about their experiences in an effort to allay the fears of incoming clients and their families. Their stories were encouraging, and their light-at-the-end-of-the-tunnel message was punctuated by the fact that they were celebrating the recent purchase of their first home.

Questions? Call US Probation Officer Sara Valdez Hoffer at 913-735-2428.

Thursday, April 27, 2017

Update: robbery is still not a crime of violence (at least Kansas robbery this time).

So a few months ago you thought we were just low on material when we blogged not once, not twice, but thrice about Bell, an Eighth Circuit case that held that Missouri second degree robbery is not a crime of violence. Maybe we were low on material but Kirk was also psychic when he said (back in November) that State v. McKinney was the "bellwether" case on the question as to whether Kansas Robbery was a crime of violence. He said that because in Kansas, a robbery could be sustained by "merely grabbing the victim’s purse, causing physical contact with her arm" it is not sufficient force as required under the force clause.

Earlier this week, the 10th Circuit agreed in Nicholas, citing McKinney for the important conclusion "that merely snatching a purse from someone’s possession is sufficient to support a robbery conviction" under Kansas law. Sound familiar? The Court concluded that Kansas robbery "does not require the use, attempted use, or threatened use of violent force as defined in Johnson" and is therefore not a crime of violence under the ACCA.

The case is unpublished for some reason but is more evidence in the consistent trend we mentioned previously that robbery is not a crime of violence.

Tuesday, April 25, 2017

Government hacking and the dark net: coming soon to the Tenth Circuit

By Rich Federico – Staff Attorney (R&W)

Image result for pacifierIn February 2015, the FBI purposefully became one of the largest distributors of child pornography in the world. As part of Operation Pacifier, the FBI had just seized computer servers in North Carolina that hosted the Playpen website, which was designed and operated for the online exchange of child pornography. Users could access Playpen anonymously through the dark net. Once it seized the servers and arrested the site administrator, rather than shut it down, the FBI kept Playpen running for thirteen days to monitor traffic and gather information on users. The government estimates that during the time it operated the site, over 100,000 unique users logged into the website, and made available 9,000 images and 200 videos of child pornography.

The problem for the FBI was the anonymity of the users did not allow it to gather the information it needed to investigate the persons on the other end of the network connection. The FBI solved this problem by deploying malware to hack into thousands of computers around the world to unmask the users who accessed the Playpen site. Geographic borders and jurisdictional boundaries were no match for the government’s cyber tools. In using these tools, the FBI opened a new frontier into cyber law-enforcement investigations which will undoubtedly strain Fourth Amendment jurisprudence.

Let’s start with some very basic tech background for the non-techies amongst us (which includes the author of this post). “Malware” is software designed to damage computer systems or temporarily take control over their operations. In the context of the Playpen investigation, the malware was referred to by the FBI as a “Network Investigative Technique” (NIT). The NIT temporarily (think fractions of seconds) took control over users’ computers to transmit information back to the FBI, including the IP address of the user.

Image result for "operation pacifier"The “dark net” was accessed in these cases through “The Onion Router” (TOR) Network, which was originally designed by the government for intelligence communications and operates to mask user-identities by using a series of network relays. Only the “exit node” of the relays to a website can be identified; the original user cannot be traced. There is nothing illegal about using TOR, but it doesn’t take much imagination to consider how it can be used to facilitate illegal activity (e.g. the Silk Road cases). It also doesn’t take much tech-savvy to use, as the TOR bundle can easily be downloaded and installed.

Thursday, April 20, 2017

When is a prior sentence "based on a sentencing range that has subsequently been lowered by the Sentencing Commission?"

Luckily for him, in Mr. Jordan's case. He originally agreed to an 11(c)(1)(C) agreement to 168 months. The agreement included generic language that the parties were "not requesting imposition of an advisory guideline sentence." But the plea agreement itself mentioned a base offense level of 31 and a Guidelines range of 135 to 168 months. And at the change of plea hearing the prosecutor mentioned that Mr. Jordan was a criminal history category III and that the resulting guideline range was 135 to 168 months.

When the PSR came back, it recommended a higher range of 168 to 210 months based on a two level enhancement for possession of firearms. Without an objection to that range, the district court accepted the agreement and sentenced Mr. Jordan to 168 months, mentioning such a sentence was "at the low end of what the guideline range would otherwise have been."

Five years later, "Guideline Amendments 782 and 788 went into effect, retroactively lowering the base offense levels for certain drug quantities." This amendment would have reduced Mr. Jordan's base offense level by two levels. Mr. Jordan filed a motion for sentence reduction under 18 U.S.C. § 3582(c)(2) and requested a sentence of 135 months, which would have been the low end of the new range. The district court denied the motion for lack of jurisdiction. Mr. Jordan's appeal resulted from that denial.

The Tenth Circuit, using the Supreme Court's decision in Freeman, held that Mr. Jordan's sentence was "based on" the Guidelines and remanded the case to the district court to determine if Mr. Jordan should receive the reduction he originally requested.

Tuesday, April 18, 2017

Within-GL child-pornography sentence substantively unreasonable

We have blogged before about sentences declared substantively unreasonable by appellate courts, here, here, and here.

But those cases all involved upward variances.

This week, the Second Circuit declared a guideline sentence substantively unreasonable.

The defendant in the case, a first-time felony offender, was convicted of possessing and transporting child pornography. His guideline range was 210-262 months. Sentencing was a "stormy" affair, according to the appellate court, during which the defendant---an "intemperate, out of control, pro se litigant"---"repeatedly clashed with the court." The court sentenced the defendant to 225 months in prison, plus 25 years of supervised release.

On appeal, the Second Circuit reversed, describing this sentence as "shockingly high" and substantively unreasonable. The majority takes apart the child-pornography guideline, emphasizes research demonstrating that recidivism declines with age, highlights the cost of incarcerating aging convicts, and points out that this defendant's sentence was higher than the typical federal sentence for in-person sexual assaults.

And on top of that, the Second Circuit also shot down several onerous conditions of supervised release.

A must read for anyone seeking a variance or challenging release conditions in a child-pornography case.

Sunday, April 16, 2017

Congratulations Melanie Morgan!

Congratulations to Melanie Morgan, the CJA Representative for the District of Kansas, who was recently elected to co-chair the Defender Services Advisory Group. DSAG is the national elected body that represents the FDO and CJA within the Administrative Office of the United States Courts. Melanie will have a tremendous opportunity to impact public defense and will have a voice in presenting the collective defense perspective of CJA panel lawyers as policy, management, and budgetary issues related to the defense function are considered. We are extremely thankful for all of Melanie's hard work and hours away from Kansas, her office, and family. And we are very proud of the excellent job she does representing our District.

Thursday, April 13, 2017

Update: National commission on forensic science.

Last year we blogged (somewhat snidely) about a report from the nations leading scientists and engineers that reviewed the current landscape of forensic science. The report was critical of a number of fields from bitemark to fingerprint evidence. And we joked that as a result of the report, prosecutors all over the country were revisiting this landscape to see what changes they could make to account for this report (they did not).

If you think Jeff Sessions appointment as Attorney General would have signaled a positive move to look at the tough issues surrounding forensic evidence today, well, I got nothing for you. According to a statement released by the Justice Department, Sessions will end the Obama enacted National Commission of Forensic Science. While the commission may be gone, their scathing report lives on and hopefully will be cited in more and more motions and opinions as we tried to deal with the flaws in forensic science today. Since the report was moved to the archives after our last post, you can now find it here.

Tuesday, April 11, 2017

Thinking of waiving appellate rights? Think again, says the KBA

Last month, the Kansas Bar Association issued an ethics opinion (KBA Legal Ethics Opinion No. 17-02) concluding that "[i]t is unethical and inappropriate for defense attorneys and prosecutors to request a criminal defendant to waive or release claims (a) that the defense lawyer’s assistance was ineffective; or (b) that the prosecutor committed misconduct in the case in which a plea is to be entered."

This is a good reminder to check those plea agreements and make sure that---whatever other waivers they contain---they cannot be read to waive misconduct or IAC claims. And it's a good reminder, too, that all appeal and postconviction waivers in plea agreements are discretionary and negotiable. Waivers might be limited in scope by excluding, for example, constitutional sentencing claims, plain guideline error, and sentence-reduction motions based on future retroactive guideline amendments. When we ask a client to waive appellate rights, we should consider the scope of that waiver and be sure that the client is securing a real benefit in return.

Friday, April 7, 2017

Update: courts may take consecutive 924(c) counts in consideration when sentencing on predicate offense.

Last month we blogged on a pending Supreme Court case that asked (according to Justice Roberts): "whether, in calculating the sentence for the predicate offense, a judge must ignore the fact that the defendant will serve the mandatory minimums imposed under §924(c)."

Luckily, future Justice Gorsuch won't have another awkward disagreement with his soon to be fellow justices. In Dean, the Supreme Court agreed with Judge Gorsuch, who wrote in Smith that a district court may consider the harsh penalties associated with §924(c) when determining the sentence for the predicate offense.

A summary of the facts in Dean are helpful for understanding this decision. Mr. Dean was convicted of two §924(c) counts plus other robbery related offenses. The §924(c) counts mandated a 5 year and consecutive 25 year sentence. So the judge started the sentencing consideration at 30 years. But Mr. Dean was clearly a "follower" in the predicate robberies involved here. Mr. Dean also lacked "any significant history of any violence." And the district court showed a clear desire to consider this mandatory 30 year sentence for Mr. Dean, stating that a sentence of 30 years and a day would be "more than sufficient." However, the district court didn't believe it was able to give such a sentence, and instead imposed a below guidelines sentence of 40 months on the predicate offenses, resulting in a 400 month sentence.

Of course the text of §924(c) says "in addition to the punishment" involved in predicate offenses. But the statute doesn't say how much time it must be in addition to. So here, the district court showed a desire to sentence Mr. Dean to 30 year on the §924(c) counts and one day on the predicate offenses, but didn't believe it could do so. The Supremem Court said said the district court could do so, and reversed.

As we mentioned in the earlier post: "The Supreme Court decision looks to largely come down to a question of a textual construction versus the intent of congress." Justice Roberts concurred:

The Government speaks of Congress’s intent to prevent district courts from bottoming out sentences for predicate §924(c) offenses whenever they think a mandatory minimum under §924(c) is already punishment enough. But no such intent finds expression in the language of §924(c). That language simply requires any mandatory minimum under §924(c) to be imposed “in addition to” the sentence for the predicate offense, and to run consecutively to that sentence. Nothing in those requirements prevents a sentencing court from considering a mandatory minimum under §924(c) when calculating an appropriate sentence for the predicate offense.

Tuesday, April 4, 2017

Harsh mandatory gun sentence? Judge may subtract time from the predicate sentence to make up for it.

Sentencing courts may consider the harsh nature of a § 924(c) mandatory minimum sentence when deciding what sentence is appropriate for the predicate offense, said a unanimous Supreme Court this week in United States v. Dean.

As a general matter, federal sentencing statutes "permit a court imposing a sentence on one count of conviction to consider sentences imposed on other counts." And nothing in the text of § 924(c) restricts a court's general sentencing authority in this regard.

A broader point of interest in Dean: Chief Justice Roberts appeared to recognize what the sentencing data has shown over the years about offenders "aging out" of recidivism, and the futility of obscenely long sentences:
Dean committed the two robberies at issue here when he was 23 years old. That he will not be released from prison until well after his fiftieth birthday because of the §924(c) convictions surely bears on whether—in connection with his predicate crimes—still more incarceration is necessary to protect the public. Likewise, in considering "the need for the sentence imposed . . . to afford adequate deterrence," §3553(a)(2)(B), the District Court could not reasonably ignore the deterrent effect of Dean’s 30-year mandatory minimum.


Tuesday, March 28, 2017

How (and why) to shake your client's hand

Earlier this month, Pope Francis encouraged people not only to give money to those who ask for it on the street but also to stop, look the asker in the eyes, and touch him or her. His point was that physical touch is crucial to recognizing another's humanity. It says: I am present with you. I am not afraid of you.

Touch is not just a symbolic gesture; it affects the brain in ways that increase trust and rapport. It's an important aspect of our client communications that we probably don't think about enough. But incorporating it into our client meetings is as simple as remembering to shake our client's hand. Even when our client is shackled. And even when he's behind glass (ask the guards for a moment to greet the client before he is settled in the booth; they may actually give it to you). Touch (or a touch substitute) may be important, too, when a client is sharing difficult information. A touch on the arm or the back of the hand, leaning towards the client across the table, or touching fingers to the glass indicates, again: I hear you; I am present with you; I am not afraid of you.

But please! No dead-fish handshakes, no queen's fingertips, and certainly not the Trump grab-and-jerk!

A warm, firm (not crushing!) grip with a "hand hug" on top is a very pleasant handshake.

Thursday, March 23, 2017

Medical Care in the BOP

You might think that it would be nearly impossible to win an appeal that a sentence is unreasoanble based on your clients unique health issues. And, evidenced by the majority in United States v. Rothbard, you may be right.

Jeffrey Rothbard suffers from a unique type of leukemia. And the medication that Mr. Rothbard needs to keep him alive costs over $100,000 a year. So after entering a plea to a wire fraud offense (while on probation for a state check fraud case), he asked for a nonprison disposition to his case. To support this request he provided evidence that the BOP could not guarantee that he would get that expensive, life saving medication. The probation office joined him and asked for a combination of halfway house, home confinement, and probation. However, the district court sentenced Mr. Rothbard to 24 months in BOP. The government was able to produce evidence that in the past, inmates with a similar condition got that medication. He appealed, arguing that such a sentence was unreasonable. The majority affirmed. And although it was not guaranteed in this case, the majority believed he was likely to get the medication and, if he did not get the medication, he could file a greivance with the BOP.

And then Judge Posner wrote a dissent that included dropping this bomb:

What is clear is that Jeffrey Rothbard is entitled to a more informed and compassionate judicial response to his physical and mental illnesses than he has received from the district court and this court.

 Besides that great quote, Judge Posner's dissent is a helpful resource for anyone trying to get a non-prison disposition for a client with health issues. He not only provides some excellent research to support such a motion, but he also recommends that the district court conduct a review that includes
"neutral expert witnesses drawn both from the medical profession and from academic analysis of prison practices and conditions." Hopefully someone can use his work to get a favorable disposition in district court - winning on appeal seems unlikely.