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.

Wednesday, March 22, 2017

Issues pending in the 10th Circuit

Want to know if anyone else has ever argued that an Oregon arson is not a violent felony for ACCA purposes? Curious about what a statutory speedy-trial argument might look like? Need to rebut the government's "good faith" argument in response to your suppression motion? Check out the latest Issues Pending document on our website. There you can find summaries of issues currently pending in the Tenth Circuit in direct criminal appeals, as well as in counseled postconviction appeals.

What can you do with this information? Grab the briefs off of PACER to read the arguments; consider staying/continuing your case if the Tenth Circuit is close to deciding a controlling issue; or just browse the issues in a relevant category so you know what to raise and preserve in your own case.

The link to this document used to be on our website's front page. Since we've revamped the website, you have to dig just a wee bit to get to it. From the front page, click on the ATTORNEY RESOURCES tab in the blue ribbon:


Then click on Issues Pending (the text, not the icon) in the lower right corner:

Happy reading!

Sunday, March 19, 2017

"Door-Busting Drug Raids Leave a Trail of Blood"

The Sunday New York Times led with this article about the inherent and often unnecessary danger of SWAT teams executing no-knock warrants:
As policing has militarized to fight a faltering war on drugs, few tactics have proved as dangerous as the use of forcible-entry raids to serve narcotics search warrants, which regularly introduce staggering levels of violence into missions that might be accomplished through patient stakeouts or simple knocks at the door.
Thousands of times a year, these “dynamic entry” raids exploit the element of surprise to effect seizures and arrests of neighborhood drug dealers. But they have also led time and again to avoidable deaths, gruesome injuries, demolished property, enduring trauma, blackened reputations and multimillion-dollar legal settlements at taxpayer expense, an investigation by The New York Times found.
Watch this NYT's video.

For a time, under Wislon v. Arkansas and Richards v. Wisconsin, an unreasonable no-knock search warrant execution was subject to the exclusionary rule. Then came Justice Scalia in Hudson v. Michigan. Sure, a no-knock warrant could be unreasonable under the Fourth Amendment but this was not sufficient to trigger the exclusionary rule; other deterrents, such section 1983 civil actions, would suffice. With Hudson, decided in 2006Fourth Amendment challenges to search warrant executions in criminal cases all but died. Meanwhile, the the no-knock executions described in the Times articles continue. Between 2010 and 2016, 13 police officers have died during forced-entry warrant executions; 81 civilians were killed. 

Hudson was one of the first major blows to the exclusionary rule. More recently, Utah v. Strieff took a swipe at the judicially-crafted remedy: "[E]ven when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits. In some cases, for example, the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression."  

Hudson was implicitly limited to search warrants. But what about arrest warrants? Does the exclusionary rule still apply to no-knock police home invasions executing an arrest warrant? At least one Circuit court says yes. In United States v. Weaver, 808 F.3d 26 (D.C. Cir. 2015), the court made this distinction:
An individual subject to an arrest warrant accordingly retains a robust privacy interest in the home's interior. That privacy interest is protected by requiring law enforcement officers executing an arrest warrant to knock, announce their identity and purpose, and provide the arrestee with the opportunity to come to the door before they barge in. And, where evidence is obtained because officers violated the knock-and-announce rule in executing an arrest warrant at the arrestee's home, the exclusionary rule retains its remedial force. Under Hudson's own analytic approach, then, exclusion of the evidence may be an appropriate remedy. Id. at 31.
The same is true for night-time search warrant executions. Fourth Amendment challenges are difficult but not foreclosed. As the Eighth Circuit noted in 2011, “[a]lthough this constitutional issue has received surprisingly little attention in numerous night-time search decisions, we have little doubt that in some circumstances an officer’s night-time entry into a home might be unreasonable under the Fourth Amendment.” United States v. Kelley, 652 F.3d 915 (8th Cir. 2011).

For more, see Lafave, SEARCH AND SEIZURE, § 1.6 The exclusionary rule in criminal proceedings (2015) (“Hudson is dead wrong.”) and  51 Santa Clara L. Rev. 545 (2011), Dangerous Criminals, the Search for the Truth and Effective Law Enforcement: How the Supreme Court Overestimates the Social Costs of the Exclusionary Rule.

Tuesday, March 14, 2017

The counterweight of dignity

Lest we forget what our detained clients may be too embarrassed to tell us: Custody strips dignity. Sometimes literally.

The Rock Island County Jail in Rock Island, Illinois, for instance, won't let incoming women detainees wear their own underwear unless it is white. They have three choices: (1) go without until they can buy white undies from the commissary; (2) go without until they can call someone to bring in some of their own white undies; or (3) go without, period (and yes, even if the woman is on her period).

What? Why? How on earth does colored underwear threaten jail security?

Image result for colored womens cotton underwear

Well, duh, obviously because the detainees might extract ink from the underwear and use it to give themselves tattoos. That's according to the Rock Island County Sheriff, in his answer to a lawsuit challenging the white-underwear policy. The Sheriff didn't offer a single instance of this occurring, but the district court granted him summary judgment anyway.

The Seventh Circuit reversed, rejecting this "meager justification" and holding that even if the Sheriff could establish a legitimate security interest, the dignity harm might be excessive in relation to that interest. The Court emphasized that jail management must take dignity into account:

"Dignity serves an important balancing function alongside the legitimate safety and management concerns of jails and prisons . . . . Without the counterweight of dignity, a jail could presumably set forth security reasons to require detainees to remain naked throughout their detention or other such unseemly measures. The Constitution forbids such tactics. It requires consideration of individual dignity interests when assessing the permissibility of restrictive custodial policies."    

Sunday, March 12, 2017

Public Defense Week

March 18, 2017, is the 54th anniversary of Gideon v. Wainwright and the Second Annual Public Defense Day. This week, we both celebrate and take time to assess the state of public defense.

And there is much to celebrate. Our alliances make us stronger and more innovative. Read about Jonathan Rapping's work at Gideon's Promise. The National Association of Public Defense just issued Alternatives to Traditional Prosecution Can Reduce Defender Workload, Save Money, and Reduce Recidivismoffering realistic and creative solutions to the increasingly burdened public defense system. Holistic defense paradigms have proven more effective and efficient.

But in many places, public defense (this includes both public defenders and appointed counsel) is overloaded and underfunded. The Atlantic reported, "America's Largest Mental Hospital is a Jail."  Misdemeanor courts are broken, and function more as spiraling debtors' prisons. Juvenile justice is often an oxymoron. Children who need the most protection receive the least attention. Within the federal system, the Cardone Committee will soon issue a report about voucher cutting, remote detention, and travel and subsistence resources for indigent clients. And then there is immigration.

Celebrate Public Defense Week, especially Saturday. Check out the links above to learn more. And if you are not already a member of NAPD, consider joining.

Monday, March 6, 2017

Immigration CLE

Our focus on immigration will continue, at least until we have a better sense of the ever-changing landscape. A new travel ban is expected today but, of course, we were told that last week, as well.

The more we know about the intersection of criminal law and immigration law, the better. Everyday, we encounter more questions from clients and their families. How can I apply for asylum? A U-Visa? What's a "credible fear" interview"?

Rekha Sharma-Crawford and Michael Sharma-Crawford are experienced immigration attorneys in Kansas City. Their firm runs The Clinic, a non-profit organization that "provides free or discounted fees for legal services to qualifying individuals in immigration removal proceedings based on income levels and ability to pay."  

The Clinic is offering a two-day Asylum Colloquium on April 20-21, details here or below. Please consider attending, and also consider ways to support the clinic and how to become more involved.

Thanks to Rekha and Michael. 

Thursday, March 2, 2017

Supreme Court to weigh in on mandatory consecutive gun sentences.

We all know as federal practitioners, consecutive 18 U.S.C. § 924(c) gun counts are extremely harsh sentences. A first conviction for a § 924(c) count is at least a 5 year sentence that must run consecutive to any other counts. A second conviction for a § 924(c) is a mandatory 25 year consecutive sentence. As a result, possessing guns during two crimes of violence or drug trafficking offenses start the required sentence at 30 years. These are some of the "mandatory minimum" sentences that are often discussed as overly harsh and punitive.

So what if a sentencing judge wants to comply with the text of the statute ("shall, in addition to the punishment provided for such crime of violence or drug trafficking crime") but also wants to try to mitigate the harm of such a mandatory consecutive sentence by taking them into account when deciding the sentence for the underlying crime of violence or drug trafficking offense? That is the question at issue in Dean v. United States, a case that was argued earlier this week at the Supreme Court.

Mr. Dean was convicted at trial of some robbery related offenses and, relevant to this issue, two additional § 924(c) counts. At sentencing, Mr. Dean requested a variance on the non mandatory minimum robbery counts. The district court imposed a 40 month sentence on the robbery related offenses and a consecutive 360 month sentence on the § 924(c) for a controlling sentence of 400 months. The district court stated that it did not believe it had authority to vary from the robbery counts, but if it did, the court would have imposed a 1 day sentence for a total term of 360 months and 1 day.

There is good 10th Circuit authority on this question written by (wait for it) Judge (and potentially Justice) Gorsuch. as Judge Gorsuch clearly stated the issue in United States v. Smith:

Must a sentencing court studiously ignore one of the most conspicuous facts about a defendant when deciding how long he should spend in prison? After a court sentences a man to many decades in prison for using a gun during a crime of violence, must the court pretend the gun sentence doesn't exist when weighing an appropriate prison term for the underlying crime of violence?

The Supreme Court decision looks to largely come down to a question of a textual construction versus the intent of congress. Congress' intent is clear - that all § 924(c) counts should be punished harshly and be run consecutive to the underlying crime of violence or drug trafficking offense. But the text of the statute only requires the § 924(c) to be consecutive and does not limit the court in varying downward on the underlying COV or drug trafficking offense.

Tuesday, February 28, 2017

No reasonable suspicion to detain travelers for dog sniff

Here's another good Fourth Amendment case for your suppression arsenal: United States v. Lopez, decided by the Tenth Circuit on Monday. In Lopez, the Court reversed the defendants' methamphetamine-conspiracy convictions, holding that the district court should have granted their motion to suppress.

A Kansas Highway Patrol Trooper stopped the defendants for speeding, gave them a warning, questioned them about their travel plans, and then asked them for consent to search the car. They refused. The trooper detained them anyway, waiting on a drug dog.

This detention was illegal, despite the trooper's claim that the defendants were nervous, said suspicious things, and had suspicious travel plans, and that the driver had only a temporary paper license (giving the trooper probable cause to arrest her for driving without a license). Some lessons from Lopez:

Nervousness: "[W]e have consistently assigned this factor limited significance because its measure is so subjective and innocent people can vary widely in how they respond to an encounter with police . . . . Only extreme nervousness can substantially contribute to reasonable suspicion."

Travel plans: "[W]e have generally been reluctant to give weight in the reasonable-suspicion analysis to unusual travel purposes, at least absent lies, inconsistencies, or the like."

Image result for traffic stop trooperDriver's license: The driver had a printed license receipt from the California DMV rather than an actual license. But the dispatcher confirmed for the trooper that the driver had a valid license. Once he had this information, the trooper should have known that the driver could not have been arrested for driving without a license. Kansas law prohibits convictions of that crime if the arrested person later produces a valid license. "An officer does not have probable cause to arrest a person for a crime when he knows she could not be convicted. See Brown v. Fisher, 251 F. App’x 527, 534 (10th Cir. 2007) (expressing doubt that officer could arrest driver for violation of this very statute when officer knew that driver was licensed); see also United States v. Edwards, 632 F.3d 633, 640 (10th Cir. 2001) (‘If the police learn information that destroys their probable cause to arrest a defendant, the arrest may become illegal.’)."

Sunday, February 26, 2017

Immigration – Expansion of Expedited Removal – Know Your Rights

From Rich Federico – Staff Attorney (R&W) with the FPD, District of Kansas

A few weeks ago, President Trump signed several Executive Orders that shifted policy on the enforcement of immigration law within the United States. More recently, the Secretary of Homeland Security (DHS) issued memoranda to implement the President’s policies. Much has been already been written and debated concerning the legality and morality of these new policies, and this post will not engage in further debate. Rather, the purpose of this post is to highlight and discuss one potential change from a DHS Memo that will have a significant impact the ability of persons detained to receive due process.

First, it is important to distinguish between removal proceedings, which are civil matters, and criminal prosecutions for immigration offenses (such as illegal entry into the United States). If a person is charged with an immigration criminal offense, the Sixth Amendment guarantees them to right to counsel.  If that person is financially unable to hire a lawyer, one will be appointed by the court to represent them at the government’s expense. However, courts have held the Sixth Amendment does not confer the same right to counsel upon those detained pending removal proceedings who are not charged with a criminal offense.  In some cases, persons subject to removal may have a right to retain counsel under the Due Process of the Fifth Amendment. An analysis of aliens’ right to counsel in removal proceedings is detailed in a Report of the Congressional Research Service

Under the Immigration and Nationality Act, Congress established a comprehensive statutory regime to remove aliens through civil proceedings.  INA Section 235(b)(1)(A)(iii)(I) provided the Attorney General (later shifted to Secretary of DHS) to apply an expedited removal procedure to aliens who were not admitted to the United States and cannot affirmatively show, to the satisfaction of an immigration officer, that the alien has been physically present in the United States for the two-year period immediately prior to the date of the determination of inadmissibility.  Expedited Removal did not apply to certain persons, such as: unaccompanied children, asylum seekers (who get a “credible fear” interview), and those with claims of citizenship or legal status.  Additionally, for over a decade, expedited removal has been limited to persons encountered within 100 air miles of the border and 14 days of entry, and those who arrived by sea or other than a port of entry.

The Secretary of DHS issued a memo stating his intention to exercise his sole discretion, provided by statute, to change the rules regarding expedited removal to expand the traditional 100-mile rule. The Secretary explains his view the need to expand expedited removal due to the “surge of illegal immigration at the southern border” and a backlog of cases before immigration judges. Coming soon to the Federal Register will be a new “Notice Designating Aliens Subject to Expedited Removal.” It is expected that the new Notice will push the expedited removal far beyond the border region, to capture the entirety of the country. Furthermore, the 14-day guideline will be expanded to two years. In other words, those persons arrested and detained on immigration matters in Kansas may be subject to expedited removal if they cannot show that they have been in Kansas for the last two years. 

If DHS does what is expected, this is a major sea change in the enforcement of immigration law and policy. For those not subject to expedited removal but instead go through the regular removal process, the INA confers due process rights, such as: the privilege of being represented by counsel, at their own expense; a reasonable opportunity to examine the evidence; to present their own evidence; and to cross-examine government witnesses. The proceeding occurs before an Article I immigration judge, and a record of the proceeding is kept.  There also may be a right to appeal a removal order to the Board of Immigration Appeals.

Not so for expedited removal. Under expedited removal proceedings, there is no right to a hearing before a judge. The immigration officer acts as the judge to gather facts and make a determination regarding removal. The immigration officer must create a record of the facts and statements made by the alien, using a sworn statement form. The alien shall be given the opportunity to respond to the charges in a sworn statement. The immigration officer and supervisor then sign the order of removal, if they determine grounds for expedited removal have been met. No lawyer, no judge, no appeal.
As noted, there is no Sixth Amendment right to counsel in removal proceedings.  However, there is a Fifth Amendment right, which allows for counsel to appear before an immigration judge under removal proceedings. The Tenth Circuit has not weighed in whether the privilege of retained counsel representation applies to expedited removal proceedings. However, if counsel has been retained, all efforts should be made to contact counsel. 

There are also some additional practical tips that have been passed around regarding what persons can do to plan ahead, if they believe they are at risk of being detained, such as:

1.    Have a plan for children.  If they are citizens, get them passports.  Make sure their documents are in order (e.g. birth certificates) and have copies.  Make arrangements for school pick-up alternatives.  Consider a power-of-attorney and alternative care-givers.

2.    Gather documentation showing more than 2 years of physical presence within the United States (bills, medical records, school records, receipts, leases, etc.).  Keep it with you; make a copy for a spouse or relative.

3.    Memorize phone numbers – family members, neighbors, lawyers.

4.    Most important – Know Your Rights!  Do not sign anything that you don’t understand.  Don’t allow police or ICE agents into your home without a warrant – don’t consent to entry.  Ask for a lawyer.  Ask to call your family.  Exercise the right to remain silent and don’t answer questions.  Request bond.  Ask for a copy of all documents related to your case.  

5.   If an agent tells you that they have found that you are removable or going to be removed and barred from reentering, tell them that you want to contest that finding. Tell them that you do not consent to this removal and do not sign any document related to the removal.

The ACLU’s Know Your Rights Card can be found here.
Also read the New York Times, Trumps Immigration Policies Explained.

Note: Lawyers at the Federal Public Defender are not immigration attorneys and only represent persons charged with criminal immigration offenses, once appointed by the court.  The following is not meant to be, and should not be relied upon, as legal advice regarding immigration matters.  If you are in need of legal advice regarding any immigration matter, we highly recommend you seek counsel from an attorney with subject matter expertise on immigration law.

Thanks to Rich and to Immigration Attorney Angie Williams. 

Thursday, February 23, 2017

Can the government force your thumbprint to unlock your phone?

No, at least for one Federal District Court Judge in the Northern District of Illinois. In this case the government sought a warrant to search a particular place for various computer based technologies and also, as is relevant here, to force “any individual who is present at the subject premises at the time of the search to provide his fingerprints and/or thumbprints onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device.”

The Judge rejected that portion of the warrant. Interestingly, one basis the Judge rejected the warrant is on 5th Amendment grounds:
The connection between the fingerprint and Apple’s biometric security system, shows a connection with the suspected contraband. By using a finger to unlock a phone’s contents, a suspect is producing the contents on the phone. With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.

 Professor Orin Kerr at George Washington Law School blogged on this case as well. He agreed with the outcome, but for a different reason. For Prof. Kerr, a
warrant has to state where the police can search and what they can seize there. But what else happens when the warrant is executed is a matter of case-by-case reasonableness, and magistrates shouldn’t try to insert themselves into that by imposing blanket reasonableness determination ex ante when they have no idea what the facts will turn out to be.
With changes in technology and courts finally tackling privacy issues in relation to the new landscape, hopefully decisions like this one (limiting the governments ability to search) become a little more common.