Wednesday, April 29, 2020

Congratulations to Paige Nichols

Congratulations to Paige Nichols, of the Federal Public Defender for the District of Kansas, for winning this year’s Champion of Justice Award from the Kansas Association of Criminal Defense Lawyers.

The Champion of Justice Award is given for outstanding contributions to the field of criminal defense in Kansas. It can be for exceptional defense of clients, but it also can be for outstanding contributions to legal education or community service. As was noted when the award was given last week, Paige has done it all and then some.

Paige currently works as an Assistant Federal Public Defender for the District of Kansas, where she litigates direct appeals, supports district-court motions practice, and contributes to various local and national Federal Defender training projects. Anyone who has read a motion or brief written by Paige knows that her client representation is top notch.

But Paige has been a Kansas criminal-defense lawyer since graduating from Northeastern University Law School in 1993. She received her LLM in criminal law from UMKC, where she helped found the Midwestern Innocence Project. In total, she has worked in city, state, and federal courts as both a private and public defender, and at every stage of a criminal case (pre-charge, district court, appeal, SCOTUS, post-conviction, clemency). And she has worked on some of the more important cases in the history of our state.

But Paige has contributed to the field of criminal defense in Kansas in countless other ways. She been a KACDL member since 1994. She has served as the organization’s treasurer, secretary, newsletter editor, and ethics chair. She has also worked on legislation and authored amicus briefs for the organization. And she has been a frequent CLE presenter, always entertaining and educating at a high level. She even hosted an informative (and entertaining) podcast (Just in Case) focusing on criminal-defense case law just in from the Kansas appellate courts, the 10th Circuit, and the U.S. Supreme Court.

So thank you Paige for everything you have done for the field of criminal defense in Kansas. And congratulations on the well-deserved 2020 Champion of Justice Award.

Second Chair: new (corrected!) application deadline; new start date

Applications for the 2020 Kansas Federal Public Defender's Second Chair program are now due May 31, 2020.

Second Chair is a training and mentoring program for attorneys who want to apply for the CJA panel but lack the requisite experience. The program is led by the FPD and will take place in Kansas City beginning July 1, 2020.

The program includes an intensive monthly orientation that covers all phases of a federal criminal case and the sentencing guidelines. Attendance at these sessions is mandatory for continued participation in the program. Sessions will be held remotely if necessary.

Each participant will also be assigned to a more experienced mentor attorney to shadow on selected cases.

Participants should plan to commit about 8-10 hours per month. Materials and compensation ($70 per hour) are provided courtesy of the Bench-Bar Committee.

If you would like to apply, please send a letter of interest, resume, and the names of three references to Laura Shaneyfelt, CJA Resource Counsel, at laura_shaneyfelt@fd.org.

Tuesday, April 28, 2020

Second Chair: new application deadline; new start date

Applications for the 2020 Kansas Federal Public Defender's Second Chair program are now due May 31, 2020.

Second Chair is a training and mentoring program for attorneys who want to apply for the CJA panel but lack the requisite experience. The program is led by the FPD and will take place in Kansas City beginning July 1, 2020.

The program includes an intensive monthly orientation that covers all phases of a federal criminal case and the sentencing guidelines. Attendance at these sessions is mandatory for continued participation in the program. Sessions will be held remotely if necessary.

Each participant will also be assigned to a more experienced mentor attorney to shadow on selected cases.

Participants should plan to commit about 8-10 hours per month. Materials and compensation ($70 per hour) are provided courtesy of the Bench-Bar Committee.

If you would like to apply, please send a letter of interest, resume, and the names of three references to Laura Shaneyfelt, CJA Resource Counsel, at laura_shaneyfelt@fd.org.

Sunday, April 19, 2020

Tenth Circuit Breviaries

Recently at the Tenth Circuit:

Statutory interpretation: what does "a" mean?
Sesame Street on Twitter: "Today's Letter of the Day is a very ...
The Dictionary Act says that “words importing the singular include and apply to several persons, parties, or things” unless “the context indicates otherwise.” 1 U.S.C. § 1. What if that word is the singular article "a"? Well, as the Act suggests, it depends. If you want to know more, check out Banuelos v. Barr, in which the Tenth Circuit takes "a's" temperature and concludes that the words "a notice to appear" in 8 U.S.C. § 1229b(d)(1)(A) refer to a single document.

Fourth Amendment

Running a Triple I criminal-history check through dispatch (as opposed to simply using the trooper's in-car computer) was a "negligently burdensome precaution" that did not unconstitutionally extend a routine traffic stop in United States v. Mayville. Of course, every Fourth Amendment claim is decided on its own facts: "While we can imagine other situations in which an officer’s decision to run a Triple I check through dispatch would unreasonably prolong a traffic stop, that is not the case here."

Felon-in-possession, 18 U.S.C. § 922(g)

In United States v. Samora, the Tenth Circuit held that, while the government presented sufficient evidence to sustain Mr. Samora's Section 922(g) conviction, the district court's erroneous constructive-possession instruction (Henderson/Little error) necessitated reversal even under plain-error review.

ACCA violent-felony predicates

In United States v. Manzanares, the Tenth Circuit held that, after Stokeling, New Mexico robbery--which requires not just property snatching but also overcoming victim resistance--remains a violent felony for ACCA purposes. The Court distinguished Kansas robbery (per Bong) as falling "on the other side of the 'snatching' line."

Tuesday, April 14, 2020

A broad interpretation of crack-cocaine defendants eligible for First Step Act relief

The First Circuit recently took an expansive interpretation of who is eligible for relief under § 404 of the First Step Act. In United States v. Smith, the court held that individuals convicted under 21 U.S.C. §  841(b)(1)(C)--for distribution of drug quantities too small to trigger any mandatory-minimum penalty--are eligible to move for a reduction. The court rejected an argument that a defendant is not eligible if the statutory range for the specific quantity of crack cocaine attributed to that particular defendant did not change.

The court relied on the text of § 404. The court reasoned that a crack-cocaine defendant is eligible for relief if he was convicted under a "federal criminal statute" whose penalties were "modified" by the First Step Act (as made retroactive by the First Step Act). The court held that the "federal criminal statute" at issue is § 841(a), "which describes all the conduct necessary to violate § 841," and not the particular penalty subsection that applied to a defendant. The court also pointed out that the Fair Sentencing Act raised the upper threshold for § (b)(1)(C) offenses from 5 grams to 28 grams. "This is a modification," the court reasoned, even if it is not a change to the prescribed sentencing range. That modification matters, because the "statutory benchmarks likely have an anchoring effect on a sentencing judge's decision making."

Be aware that the Tenth Circuit has rejected a similar argument in an unpublished opinion, albeit one that does not address the statutory interpretation arguments addressed by the First Circuit. See United States v. Martinez, 777 Fed. Appx. 946, 947 (10th Cir. 2019). Keep an eye on the Fourth Circuit. In a case raising this same issue, the Fourth Circuit recently vacated the denial of a defendant's motion for First Step Act relief for reasons that "will be further explained in [the court's] forthcoming opinion." United States v. Woodson, No. 19-6976, 2020 WL 1623742 (4th Cir. Apr. 2, 2020).

Tuesday, April 7, 2020

Reasonable suspicion after Glover

On Monday, the Supreme Court held in Kansas v. Glover that a Kansas police officer did not violate the Fourth Amendment when he initiated an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner had a revoked driver’s license. Absent any other information, the officer reasonably suspected that the driver was the vehicle's owner (and driving despite his license's revocation).
The Glover majority reminded us that while a reasonable suspicion must be more than just a hunch, it "falls considerably short of 51% accuracy."

But reasonable suspicion nonetheless continues to have bite, as Glover illustrates with respect to three points:



Officers still can't ignore evidence that dissipates reasonable suspicion.

Glover proceeded on a bare stipulation, and the majority emphasized the narrow scope of its holding, noting that under the totality-of-circumstances approach, "the presence of additional facts might dispel reasonable suspicion." 

The Tenth Circuit has repeatedly made this point about both reasonable suspicion and probable cause. See, e.g., Stanley v. Finnegan, 899 F.3d 623, 628 (10th Cir. 2018) (“an official is not free to disregard plainly exculpatory evidence when it undermines substantial inculpatory evidence that reasonable suspicion exists”); United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004) (“Thus, in determining whether probable cause to arrest existed, we look not only to the facts supporting probable cause, but also to those that militate against it.”); 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.”)

Officers still have to corroborate unreliable claims before those claims may support a reasonable suspicion 

In Glover, nobody questioned the reliability of the evidence said to support reasonable suspicion (just its force). And so Glover does not undo cases requiring additional corroboration in the face of, say, an anonymous 911 call or other untrustworthy accusations. See, e.g., Stanley v. Finnegan, 899 F.3d 623, (10th Cir. 2018) (teenage son's bizarre claims of child abuse "cried out for investigation and confirmation").

Officers still can't be racist.

The majority rejected the dissent's concern that its decision would pave the way for findings of reasonable suspicion based on nothing more than a demographic profile: “To alleviate any doubt, we reiterate that the Fourth Amendment requires, and Deputy Mehrer had, an individualized suspicion that a particular citizen was engaged in a particular crime. Such a particularized suspicion would be lacking in the dissent’s hypothetical scenario, which, in any event, is already prohibited by our precedents. See United States v. Brignoni-Ponce, 422 U.S. 873, 876, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (holding that it violated the Fourth Amendment to stop and ‘question [a vehicle’s] occupants [about their immigration status] when the only ground for suspicion [was] that the occupants appear[ed] to be of Mexican ancestry’).”

Wednesday, April 1, 2020

D.Kan CJA Panel Applications Due May 4

Apply now!


It's that time again: the deadline for submitting applications for the District of Kansas CJA panel is Monday, May 4, 2020. Applications for attorneys who are not currently on the panel and reapplications for those nearing the end of their three-year term are available here. All attorneys whose terms are expiring (and thus need to reapply) have been notified by email. Panel appointments are form July 1, 2020 to June 30, 2022.