Tuesday, February 12, 2019

Advocating for probation

When imposing a sentence, federal judges are required to consider the need for the sentence "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a)(2)(D).

And yet "imprisonment is not an appropriate means of promoting correction and rehabilitation." 18 U.S.C. § 3582(a). See also Tapia v. United States, 564 U.S. 319 (2011).

What's a federal judge to do?

Consider alternatives to imprisonment, that's what. And defense counsel now have a roadmap for encouraging the judge to do just that, with U. Chicago Law Professor Erica Zunkel's new article 18 U.S.C. § 3553(a)’s Undervalued Sentencing Command: Providing a Federal Criminal Defendant with Rehabilitation, Training, and Treatment in “the Most Effective Manner.”

A few lessons from the article:

First, federal law commands judges to consider the need for correctional treatment "in the most effective manner." BOP cannot provide that treatment. Again, federal law prohibits imposing a prison sentence for rehabilitation purposes. And BOP "faces numerous hurdles to providing 'the most effective' care for defendants due to overcrowding, staffing shortages, high medical costs, and budget cuts."


Second, defense counsel should present the sentencing judge with specific evidence and data contrasting correctional treatment relevant to counsel's client inside the BOP with correctional treatment available outside the BOP.

Third, defense counsel should show the sentencing judge how a non-prison sentence promotes other sentencing goals as well. For instance, even the Supreme Court has recognized that probation constitutes punishment, as it "substantially restrict[s]" a person's liberty. Gall v. United States, 552 U.S. 38, 48 (2007). And counsel can present studies to argue that a probationary sentence with correctional treatment can do a better job of deterring crime and protecting the public than can a sentence of imprisonment.

Sunday, February 10, 2019

Hold the government to its burden


Recently, in United States v. Munksgard, No. 16-17654, 2019 WL 361432 (11th Cir. Jan. 30, 2019), the Eleventh Circuit issued an opinion which serves as a reminder to defense attorneys to hold the government to its burden and argue—after the evidence is closed—that the government failed to offer sufficient evidence at trial to prove that a bank is FDIC-insured. Although the defendant in Munksgard did not prevail in his appeal, the case was sufficiently close to provoke a detailed dissent and a strong word of warning from the majority to government prosecutors.
 
Mr. Munksgard was charged under 18 U.S.C. § 1014, which “criminalizes the act of knowingly making a false statement in order to obtain a loan from a bank that is insured by the FDIC.” Munksgard’s appeal raised the issue of whether the government had presented sufficient evidence to prove that the bank was FDIC-insured at the time of the offense.
 
As the dissent noted, the government provided no direct evidence that the bank was FDIC-insured in 2013 when the offense was committed. Instead, the government presented the following evidence at trial: (1) certification which indicated that the bank was FDIC-insured at the time of its charter in 1990, decades before the offense; (2) testimony that the bank was insured at the time of trial in 2016; and (3) testimony that the bank “isn’t required to ‘renew’ its FDIC certificate ‘every so often.’”
 
Although the court concluded, “albeit reluctantly,” that a reasonable juror could find that the bank was insured by the FDIC at the time of the offense, it noted that “[f]or reasons that leave us mystified, in cases involving federally insured banks—bank robbery, bank fraud, etc.—the government continues to stub its toe in seeking to prove the seemingly straightforward, but nonetheless jurisdictionally ‘indispensable,’ element of FDIC insurance.”
 
As the majority stated, “let this be a warning to federal prosecutors: You are (as the author’s mother used to say) cruisin’ for a bruisin’. Don’t apologize—do better.”
 
The decision can be found here.

Sunday, February 3, 2019

Through the gateway of "actual innocence"

Actual innocence is one gateway to overcoming procedural bars to habeas relief set forth by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). That is, to prevent “a fundamental miscarriage of justice,” the Court has carved out a rule that an otherwise procedurally-barred petition under AEDPA is not barred where a petitioner can make a credible showing of actual innocence by (1) presenting new, reliable evidence, and (2) demonstrating by a preponderance of the evidence that it is more likely than not that not that a reasonable juror would have reasonable doubt.

Pathway Between Green Trees Brown Steel Gate during DaytimeLast week, in Finch v. McKoy, No 17-6518, 2019 WL 324667 (4th Cir. Jan. 25, 2019), the Fourth Circuit reaffirmed the essential nature of the actual-innocence gateway to habeas review.

In 1976, a North Carolina jury  convicted Charles Finch of first-degree murder of a gas station owner in a robber-gone-wrong. The state presented no physical evidence implicating Mr. Finch in the crime but rather relied on one eyewitness’s testimony and identification of Mr. Finch as the shotgun shooter. Nearly 40 years later, in 2015, Mr. Finch filed a federal habeas petition presenting new evidence in support of his wrongful conviction. 

The new evidence includes expert testimony regarding the due-process violation stemming from an impermissibly suggestive lineup scheme, which—in addition to new evidence that the murder weapon was not a shotgun but rather a pistol—tainted the credibility of the state’s star eyewitness such that, as the Fourth Circuit held, a reasonable juror would likely doubt that witness’s pretrial (and in-court) identification of Mr. Finch, as well as his account of the events.  

Despite this convincing new evidence, the district court nevertheless dismissed the petition as untimely under AEDPA. But, enter the Fourth Circuit to reverse after finding Mr. Finch sufficiently set forth new evidence that, under the totality of the circumstances, would “likely fail to convince any reasonable juror of his guilt beyond a reasonable doubt.” In doing so, the Fourth Circuit has granted Mr. Finch—now 80—the opportunity to challenge the veracity of his convictions and any miscarriages of justice at a hearing on the merits of his claims.

And for curious readers, the recording of oral arguments before the Fourth Circuit can be found here.

Thursday, January 31, 2019

Kansas robbery is not a violent felony

We have blogged about Kansas robbery before (here and here), but it's been a while, and the Tenth Circuit did not publish an authoritative opinion on the issue until this week.

It's now official: Neither Kansas robbery nor Kansas aggravated robbery are violent felonies. They cannot serve as predicate offenses for ACCA purposes (or, for similar reasons, for career-offender or other like purposes).

So says the Tenth Circuit in United States v. Bong, No. 16-3323, 2019 WL 336512 (Jan. 28, 2019).

Sunday, January 27, 2019

What to expect when you're expecting a prison term

Do you have clients who are headed to prison?

Don't let them go unprepared.

On February 21, 2019, from 3 p.m. to 5 p.m. at the Kansas City, Kansas, courthouse, US Probation will be holding its quarterly orientation program for people facing federal prison time. Family, counsel, and staff members are encouraged to attend. Participants may join by videoconference from the federal courthouses in Wichita, Topeka, and the Western District of Missouri.

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 previous program, 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.

The orientation will also be offered on May 9, 2019, August 8, 2019, and November 7, 2019 (same time & place).

Clients who are currently in custody and unable to attend may be able to attend a similar program at CCA while awaiting sentencing/designation.

Questions? Call Senior US Probation Officer Sara Valdez Hoffer at 913-735-2402.

Thursday, January 17, 2019

Unpacking Anti-Stacking


Stacking occurs when an enhanced sentence for a second or subsequent conviction is imposed consecutive to a first-conviction sentence within the same case. Anti-stacking, under the December 21, 2018 First Step Act, means that the enhanced second-or-subsequent sentence applies only to sequential convictions. Crime, conviction, sentence; new crime, conviction, sentence.

Let’s unpack this.

The statute: Section 924(c)(1)(A) requires a sentence of not less than 5, 7 , or 10 years upon conviction. Subsection (c)(1)(C) required a sentence of 25 years (or sometimes life) for a “second or subsequent conviction.” With the amendment, subsection (C) applies only "after a prior conviction under this subsection has become final.” And subsection (D), then and now, requires any §924(c) sentence to run consecutively “with any other term of imprisonment imposed on the person.”

Let’s say your client was charged with three convenience store robberies (Hobb’s Act, 18 USC § 1951). And for each robbery, they were also charged with a related count of brandishing a weapon, per § 924(c).

Count 1: Robbery on August 1, 2018.
Count 2: Brandishing a firearm (9 mm) during the robbery charged in Count 1.
Count 3: Robbery on August 4, 2018.
Count 4: Brandishing a firearm (same 9mm) during the robbery charged in Count 3.
Count 5: Robbery on August 6, 2018.
Count 6: Brandishing a weapon (same 9mm) during the robbery charged in Count 5.

Before the Act, the law required that the sentences for Counts 2, 4, and 6 run consecutively to the robberies and to each other (the robberies can be concurrent to each other). And the law dictated that counts 4 and 6 were “second or subsequent convictions”, consecutive to the first conviction, Count 2. That was stacking. 

Let’s assume the sentences for the robberies were 5 years each, to run concurrently with each of the other robberies. Pre-Act, the sentences would look like this:

5 + 7 + 25 + 25  = 62 years

Expanded:

5 years (for robbery counts 1,3, and 5, concurrent) consecutive to 7 years (first § 924(c), Count 2) consecutive to 25 years (second § 924(c), Count 4) consecutive to 25 years (subsequent § 924(c), Count 6) = 62 years.

Stacking was absurd. But it happened, even with no criminal history, and it was mandatory, even if the sentencing court believed it to be “unjust, cruel, and even irrational.” Prosecutorial discretion, unhinged, and endorsed by the Tenth Circuit and U.S. Supreme Court. Prosecutors used stacking as a crushingly heavy hammer in plea negotiations.

Post-Act, subsection (C) applies only after a prior conviction becomes final, that is, in a separate preceding case, not within the same case. But the mandatory consecutive language of subsection (D) is unchanged. So the sentences would look like this:

5 + 7 + 7 + 7 = 33 years

Still a heavy hammer for the prosecution.  

The change to § 924(c) is not retroactive. It will “apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.

-- Melody


Thursday, January 10, 2019

The FIRST STEP Act & compassionate release

By Rich Federico, AFPD
 
We previously highlighted (here, here) some of the important reforms enacted in the First Step Act of 2018, passed in December by the last Congress. Another noteworthy change are the amendments to the compassionate release statute. In making these reforms, Congress provided greater opportunity for defense attorneys and families to help clients and loved ones who may be eligible for compassionate release. As explained below, the new law allows clients to bring their own motions before a federal judge to seek compassionate release, and the new law establishes notice and assistance requirements for the Bureau of Prisons.

In 1984, Congress authorized compassionate release under the criteria found in 18 U.S.C. § 3582(c)(1)(A). In short, the BOP played the ministerial role and had to bring the motion on behalf of the inmate to explain the “extraordinary and compelling reasons” for a sentence reduction. Congress delegated to the Sentencing Commission to define what “extraordinary and compelling reasons” meant, and the Commission obliged by issuing a policy statement found in § 1B1.13. Most common was that BOP would only bring a motion if an inmate was diagnosed with a “terminal illness,” which the Commission defined as “a serious and advanced illness with an end of life trajectory,” though the “probability of death within a specified time period is not required.”  

BOP’s track record in compassionate release cases was poor. A Human Rights Watch report found that BOP filed very few petitions, leaving judges with only rare opportunities to determine whether compassionate release was warranted. The Campaign for Compassionate Release (here) found that the sick and the elderly have the lowest rates of recidivism, but also cost the most to keep incarcerated. Also, from 2014 to 2018, 81 families watched a loved one die in prison while their compassionate release request went unanswered by the BOP. Finally, according to a report by the Marshall Project, between 2013 and 2017, BOP approved only 6% of the 5,400 applications it received for compassionate release. Of those applicants, 266 died in custody; half of the 266 who died were convicted of nonviolent crimes.

With the passage of the First Step Act, Congress made two important changes to the law.

First, BOP is no longer is the sole movant for compassionate release motions. Now a court can review a compassionate release request “upon motion of the defendant.” However, the inmate cannot file in federal court until “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.” In other words, the inmate must first request BOP to file the motion on his or her behalf, and BOP must either deny or not file a motion with 30 days.

Second, the statute now includes notice and assistance requirements for BOP that will certainly streamline and expedite the request process. In cases where an inmate is diagnosed with a terminal illness, BOP must:

·       within 72 hours, notify the defense attorney and family members of the diagnosis;

·       within 7 days, provide them an opportunity for visitation;

·       if requested, assist them with preparing a compassionate release request; and

·       process all requests not later than 14 days after receipt.

If you are a defense attorney and receive calls from former clients or family members, the FPD is here to help. Also, if you have former clients who you think may be eligible to seek a reduction and want our assistance, please contact us.

Wednesday, January 9, 2019

The First Step Act and Prison Reform


The First Step Act lowered some drug sentences, retroactively reduced some crack cocaine offenses, and changed the mechanism for the compassionate release program. It also created new rehabilitative incentives within BOP. As usual, FAMM is a great source of information.

Here are some highlights.

Good Time Credit 

The BOP must now give 54 days of good-time credit per year of sentence imposed, rather than 47 days that BOP was allowing. Everyone serving a term of years (a number, not a word) is eligible for good time credits.

There is a debate about when this goes into effect—Congress intended it to be immediate, but the wording of the Act is less than crystalline. It is a good bet that no one will see the new credit for several months. But it is retroactive, meaning BOP will be recalculate based on the entire sentence imposed. Some folks may be eligible for immediate release; some may be doing dead time waiting for BOP to recalculate.

Earned Time Credit

The First Step Act also allows some people to earn time credits by completing programs or other services. Depending on their risk levels, they can earn up to 15 days of credit for every 30 days of rehab or production activity. There are a lot of qualifiers and caveats, explained by FAMM. These time credits are not day-for-day reduction of the actual sentences, but can be redeemed toward time in half-way houses (RRCs), on home confinement, or on supervised release. 

And it will not go into effect immediately, either. BOP has 210 days to create risk assessment tools, six months to administer the assessments, and two years to phase in the programming. And then there is delay resulting from the federal government shut down, as The Marshall Project explains in its article, What the Government Shutdown Looks Like Inside Federal Prisons.

The longest section of the Act is the list of people excluded from earned time credits. FAMM has the full list here. Computer fraud? Out of luck. SORNA? Nope. Non-citizens with immigration detainers? Nada. Other offenses that are not eligible for the new time credits:

Almost any “organizer, leader, manager, or supervisor” enhanced sentence (USSG § 3B1.1)

§  924(c) offenses

Drug trafficking offenses with death or serious bodily injury

Child pornography offenses

Terrorism offenses

Aggravated illegal reentry and other immigration offenses

Non-citizens facing deportation

Lifers

Treason (surprisingly)

And a plethora of weird offenses (recruiting child soldiers) that we never see.

Even if ineligible to earn time off, there are other incentives to complete the programming, such as greater phone privileges and commissary. Other good measures: BOP must help people get government ID cards before release; provide free tampons to women prisoners; and place people within 500 driving miles of their post-release residence (BOP policy used to read this “as the crow flies”) if space is available. And when possible, BOP is directed to move people closer to home.

Progress.

--Melody

Sunday, January 6, 2019

Mandatory Minimum Sentences in Child Porn Cases: How to Use the Sentencing Commission's New Report


What is the Sentencing Commission good for? Statistics. They keep really good stats. And we can make use of the Commission’s own stats to fight against the Commission’s own guidelines.

The Commission just issued a report, Mandatory Minimum Penalties for Federal Sex Offenses (2019), with the critical conclusion that “unwarranted sentencing disparities” result from “inconsistent application of the mandatory minimum penalty for receipt offenses.”

This is what the Commission is talking about: Under 18 USC § 2252A(b)(1), the statutory mandatory minimum sentence for receiving child pornography is five years in prison. In contrast, the mandatory minimum for possessing child pornography is, well, none. And because the Commission ties the guidelines to the statutory penalties, the base offense level for receipt is 22, while the base offense level for possession is just 18.

Now, you may be wondering, “what’s the difference between these two offenses? How does one possess without receiving?” (we are excluding production from our convo here). And “how does one receive without possessing?”

The Commission had the same questions about this irrational discrepancy, and while noting it is technically possible, it concluded that: “there is little meaningful distinction between the conduct involved in receipt and possession offenses . . .

So, you next ask, why are some people subject to a harsher sentence for the same conduct?  The answer, of course, is unilateral prosecutorial discretion to choose which charge to pursue. And we can do little about that, since the only avenue below a mandatory minimum in this context is cooperation and a motion under 18 USC 3553(e). Those are rare in CP cases.

But the Commission recognized that the inconsistency in charging practices could cause “unwarranted disparities,” something that Congress has directed the Commission and sentencing courts to avoid, under 18 USC § 3553(a)(6). The Commission made these key findings:

  •      "There was little difference in the offense seriousness between typical receipt cases, which require a five-year mandatory minimum penalty, and typical possession cases, which require none.
  •        Even though the conduct may essentially be the same, the average sentence for receipt (5-yr MM) offenders is “substantially longer” than the penalty for possession (non-MM) offenders. “Child pornography offenders convicted of distribution (140 months) and receipt offenses (93 months), which carry a 5-year mandatory minimum penalty, also had a longer average sentence than offenders convicted of possession offenses (55 months), who did not face a mandatory minimum penalty.”
  •        This 2019 Report follows up on two other Commission reports, the 2011 Report on mandatory minimum penalties and the 2012 Report on Federal Child Pornography Offenses. The 2011 Report concluded that the guideline ranges “may be excessively severe and as a result are being applied inconsistently.” That Report recommended that Congress should “align the statutory penalties for receipt and possession to reduce unwarranted sentencing disparities resulting from inconsistent application of the mandatory minimum penalty for receipt cases.” The 2012 report said the same thing (at 326). Congress has yet to follow that recommendation, and the disparity remains.


How to use this information:

The Commission has thrice determined that “inconsistent application,” (read: prosecutorial discretion) in charging receipt (MM) rather than possession has resulted in “unwarranted sentencing disparities.” (2019 Report at 15 & 56). Use these reports to ask for a below-guideline variance. Argue that the variance should equal the calculation for a possession offense (base offense level 18) rather than a receipt offense (base offense level 22) under § 2G2.2. Otherwise, the “unwarranted disparity” will persist, contrary to 18 USC §3553(a)(6).

A few more helpful statistics from the Commission. First, for comparison to your case, the average sentence lengths from 2016:


Second, below-guideline sentences are the norm. Only about one quarter of all child pornography offenses were sentenced within the prescribed guideline range. Less than 2% were above. The remainder, whether sponsored by the government or not, were below guideline. It appears that a guideline sentence, based on the Commission’s own data, creates an “unwarranted disparity.”



--Melody

Friday, January 4, 2019

He "wasn't going to say anything at all"

A suspect who interrupted his Miranda warnings about half-way through to declare that he "wasn't going to say anything at all" unambiguously invoked his right to silence, and his responses to the interrogating officers' continued questioning should have been suppressed. So said the Fourth Circuit last month in United States v. Abdallah, No. 17-4230 (4th Cir. Dec. 18, 2018).

Lessons from Abdallah:

1. An invocation is not ineffective because it is made before the suspect has heard the entire Miranda warning: "there is no requirement that an unambiguous invocation of Miranda rights also be 'knowing and intelligent.'"

2. An invocation need not take any particular tone: "There is no requirement that Miranda invocations be measured, polite, or free of anger." 

3. What happens post-invocation is irrelevant to whether the invocation was ambiguous: "courts cannot cast ambiguity on an otherwise clear invocation by looking to circumstances which occurred after the request."

4. Don't conflate the invocation analysis with a waiver analysis: "Officers cannot fail to scrupulously honor a suspect's request in the hope that the suspect will subsequently waive that failure."

Tuesday, January 1, 2019

Balancing the probative and prejudical effects of prior bad acts

"[T]he same factors that make prior-act evidence probative—similarity and temporal proximity—may also increase the risk of this form of unfair prejudice."

These are the wise words of the Sixth Circuit in United States v. Asher, a must-read case for understanding the push-me/pull-you nature of Rule 404(b) and Rule 403's probative/prejudice analysis. In Asher, the Sixth Circuit reversed the defendant's conviction on grounds that the district court erroneously admitted Rule 404(b) evidence. If you're moving to suppress evidence of a prior bad act, read Asher.