Wednesday, December 25, 2013

Asset Forfeiture Sabotages the Right to Counsel

I'm a public defender, always have been, hopefully always will be. I've never had to deal with retainers, fees, client accounts, and that's probably a good thing. The closest I've come to the issue is arguing that a partially-indigent client should not have to contribute to the court fund. To some clients, the only thing more suspect than a free lawyer is a $25-per-month lawyer. 

Guised as an asset forfeiture question, the Supreme Court will soon decide a critical Sixth Amendment right-to-counsel case, one that reaches far beyond the cost of a good lawyer. In Kaley v. US, the government -- post-indictment and ex parte -- froze the defendants' financial assets, thus interfering with their right to hire counsel (not to mention just taking their money without any due process). 

Here's how SCOTUSBlog frames it: "The issue before the Court arises from the (seemingly increasingly) common practice of the government freezing the assets of an indicted criminal defendant, who needs the assets to hire a lawyer.  The question is whether the defendant can challenge the grand jury’s determination that there is probable cause to indict him, when the indictment is the basis for the freeze."

The procedural history and precedent are tied tightly to federal statutes and forfeiture proceedings, and this tends to hide the fundamental constitutional concern -- a criminal defendant's right to defend herself. As the Kaley brief says, 

With so much at stake, due process requires a preliminary procedure to provide interim redress from the ex parte restraint of assets, where the genuine hardship facing a claimant/defendant is the denial of her Sixth Amendment right to counsel of choice at trial. For without such a pretrial hearing – at which the defendant is prepared to demonstrate that the prosecution’s theory of forfeiture is misguided and thus the restraint of assets is unjustified – she cannot hire her chosen counsel to mount the most aggressive defense at trial against the charges that threaten to strip her of those assets, as well as incarcerate her for those and other charges alleged in the indictment.

This is an Eleventh Circuit case, and the cert petition argues that the Tenth and Eleventh Circuits split from the approach of other circuits. The controlling Tenth Circuit opinion, at issue in Kaley, is US v. Jones, which coldly holds that this is merely an issue of traceable funds.  Concern for the precious resources of the federal government  ("Every dollar and minute saved not litigating challenges of dubious merit can of course be spent on matters more deserving of attention") towers over the defense right to a fair trial with effective counsel ("Due process does not automatically require a hearing and a defendant may not simply ask for one"). 

Kaley has the opportunity to reverse these priorities, and to speak to due process, to government power, to ex parte proceedings, and to the very ground of Gideon. A ruling in favor of Kaley could shift the power from secret prosecution proceedings back to the constitutional rights of the defendant, where it belongs. 

-- Melody

Thursday, December 19, 2013

President Obama on Today's Commutations and the FSA

The White House
Office of the Press Secretary

Statement by the President on Clemency

Three years ago, I signed the bipartisan Fair Sentencing Act, which dramatically narrowed the disparity between penalties for crack and powder cocaine offenses.  This law began to right a decades-old injustice, but for thousands of inmates, it came too late.  If they had been sentenced under the current law, many of them would have already served their time and paid their debt to society.  Instead, because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year. 
Today, I am commuting the prison terms of eight men and women who were sentenced under an unfair system.  Each of them has served more than 15 years in prison.  In several cases, the sentencing judges expressed frustration that the law at the time did not allow them to issue punishments that more appropriately fit the crime. 
Commuting the sentences of these eight Americans is an important step toward restoring fundamental ideals of justice and fairness.  But it must not be the last.  In the new year, lawmakers should act on the kinds of bipartisan sentencing reform measures already working their way through Congress.  Together, we must ensure that our taxpayer dollars are spent wisely, and that our justice system keeps its basic promise of equal treatment for all.
Perhaps Congress will now make the Fair Sentencing Act retroactive. And enact the Smarter Sentencing Act. And . . . . 
-- Melody

Sunday, December 15, 2013

NACDL and Dauphine Street

One of my favorite places, Dauphine Street, is right in the French Quarter.

Great hotel that mixes the original Sazerac, and the best bookshop ever.

But that's just an aside. The point of this blog entry is to remind you, courtesy of Melanie Morgan,  that this year's NACDL Conference is in that locale, in March (a month with an R in it). 

Much of the program focuses on collateral consequences and forfeitures, an increasingly important and increasingly complicated area of law, especially for federal practitioners. Scholarships and financial aid are available to encourage FPD and CJA to attend.


All info here.

Did I mention it's in New Orleans? in March?

-- Melody

Sunday, December 8, 2013

Blewett Blown

The Fair Sentencing Act just got substantially less fair.

Not that this is a surprise. Recall that the FSA  re-calibrated the statutory mandatory minimums to correspond to the revised crack guidelines. The reason, as Senator Patrick Leahy said, was to remedy 'one of the most notorious symbols of racial discrimination in the modern criminal justice system.'

But as Congress went about correcting -- to some degree -- this gross racial discrimination, it was silent about whether the FSA would be retroactive. If not, then  fewer 'than one-half of those given excessive, racially discriminatory sentences [would be eligible] for relief'.  Some 29,323 offenders appeared eligible to receive a reduced sentence if the FSA
Guideline Amendment was made retroactive.

[FSA:  This long overdue legislation changed the crack cocaine guidelines from 100:1 to 18:1 (still unfair but a far sight better).  Mandatory minimums changed as well: where five grams got you five years before 2010, the  FSA raised this to 28 grams; 280 grams of crack was required, rather  than 50, to trigger a ten-year mandatory minimum.]

For those of us watching the retroactivity issue, our focus has been on the Sixth Circuit's opinion in US v. Blewett, decided in May of this year. The Tenth Circuit had already killed the issue in US v. Lucero, but the Sixth Circuit gave hope, at least for a circuit split. Blewett held that the FSA must be retroactive, because '[p]erpetuation of such racially discriminatory sentences by federal courts is unconstitutional and therefore the sentencing guidelines must be interpreted to eliminate such a result'.

Of course, en banc was granted, and last week Blewett was blown. The FSA's new mandatory minimums do not apply to any defendant whose sentence was final before the law took effect.

BUT WAIT: the five dissents are powerful and indignant (synopsized  by the Sixth Circuit's blog). One quote from Judge Nathaniel Jones: "As judges, we should no longer remain wedded to that which experience shows is neither rational nor fair."  

Terribly discouraging result but still plenty of fodder here to continue the fight. Watch for the cert petition.

-- Melody

Friday, November 22, 2013

Free Ethics CLE

They say there's no such thing as a free lunch.

On the 4th, 5th, and 6th of December, we are offering an ethics CLE for the low, low price of free.  And we would also like, courtesy of the Bench Bar fund, to provide you with gratis nourishment.  Free ethics hours? Free lunch?  We are pretty wonderful.

Come enjoy fine dining consume food while Tom Bartee thrills informs you about the intersection between ethics and discovery issues.  Busy schedule, you say?  No problem- we're coming to you.  The dates are: 

Topeka-         December 4th
Wichita-         December 5th
Kansas City-  December 6th

A signup link will be available Monday, and we will update this post so you can register.

Update-  Carnella Anderson, our intrepid assistant in Wichita, has emailed out a complete agenda.

Monday, November 18, 2013

Juvenile Justice System Breakdown

I was struck by the sad irony that on the same day I found myself reviewing a DOJ bulletin from the Office of Juvenile Justice and Delinquency Prevention on how to ensure these "facilities are safe and that the youth in custody receive the necessary treatment and services[,] the very disturbing decision from the Tenth Circuit in Blackmon v. Sutton, et al. was returned.  See USDOJ, Office of Justice Programs, OJJDP, September 2013, p. 1. 

We would all like to think our incarcerated clientele, and especially our youth, whether client or not, are treated well.  Having heard the stories from our clients over the years of abuses that occur within detention facilities, we certainly have reason to be sceptical.  The lack of training, oversight and discipline within our correctional system has been known, sometimes witnessed, and will likely continue in an environment of overcrowding and shrinking budgets.  So, for all those private counsel who are moved to act in representing those whose voice is rarely heard in the hallowed halls of power, the Blackmon decision should give you as much hope, as it does repulsion.  

It has always been the belief by most in society that it is the inmates themselves that make the correctional environment so inhumane, and that it is their doing that causes them to come out worse than when they went in.  I don't doubt that that is partly true.  However, as this opinion reflects, albeit at the pretrial stage of denying the civil defendants' summary judgment motion, our public servants overseeing this system would appear to also carry some of the blame.  There is no doubt that this troubled and diminutive (4' 11", 96 pound) eleven-year old came out far worse than when he went into the juvenile justice system here in Wichita, Kansas.  Although the jury has not yet spoken in this case, if the matter isn't settled out of court, this case should shine a bright and embarrassing light on the professionals within our juvenile justice system that allowed this "correctional" behavior to fester.  Like any wound, sometime exposure to the open air is the only way it will heal.  Let's hope this opinion gets a good airing.           

Sunday, November 17, 2013

Stash Houses: The ATF's Crime

Can't say it any better than this:

Massively involved in the manufacture of the crime, the ATF's actions constitute conduct disgraceful to the federal government. It is not a function of our government to entice into criminal activity unsuspecting people engaged in lawful conduct; not a function to invent a fiction in order to bait a trap for the innocent; not a function to collect conspirators to carry out a script written by the government. As the executive branch of our government has failed to disavow this conduct, it becomes the duty of the judicial branch to refuse to accept these actions as legitimate elements of a criminal case in a federal court.

That's the spitting outrage (that's why it's in red) from Judge Noonan, unfortunately in a dissent in a Ninth Circuit decision (two strikes), US v. Black,  2013 WL 5734381 (9th Cir. Oct. 23, 2013), *20.  In what the majority politely calls a 'reverse sting operation', an ATF undercover agent recruited the defendants to carry out an armed robbery of a fictional cocaine stash house. The district court denied both a motion to dismiss for outrageous government misconduct (an impossibly high standard) and also a sentencing entrapment argument. 

Nonetheless, if you have a stash house case, this is worth reading. It was well-litigated (three-day evidentiary hearing), and the majority is mildly critical of the recruitment methods: "The CI’s role was to try and find some people that are willing to go commit a home invasion.” Nothing manufactured about that, huh?

But it is the dissent that provides the framework and the fuel for any such challenge. And it would be good to inject Judge Noonan's outrage into any stash house case.

The also-read: US v. Cortez2013 WL 5539622 (9th Cir. Oct. 9, 2013).

Disclosure: Full credit to Steve Sady's Blog post (from which this is shamelessly lifted).

-- Melody

Thursday, November 7, 2013

The Redemption Threshold

Forensic psychologist Karen Franklin reports today that the authors of the STATIC-99, the most popular instrument for estimating the recidivism risk of sex offenders, have concluded that recidivism rates decline rapidly as a former offender remains in the community.

While incredibly long terms of supervised release are common for federal sex offenders, the new evidence suggests that this practice is misguided.  In a study tracking 7,740 former sex offenders, the researchers concluded that even the highest-risk offenders saw their recidivism rates drop precipitously the longer that they were in the community.  High-risk offenders who had a 22% recidivism rate at release had only an 8.6% rate five years later, and a 4.2% rate ten years later.  

Two conclusions emerge from the research.  First, as the study authors note, " If high risk sexual offenders do not reoffend when given the opportunity to do so, then there is clear evidence that they are not as high risk as initially perceived."  Second, this research indicts the necessity of long-term, intensive supervision for many offenders.  Does directing a massive amount of resources at a person who is succeeding in the community, and who is 91.4% likely to not recidivate, make any sense?

Wednesday, November 6, 2013

The Smarter Sentencing Act

On October 30, companion legislation to the Senate's Smarter Sentencing Act was introduced into the House of Representatives.  The National Journal lists the Act among its 7 bills that could actually pass.  "Busted by the Feds", the Bible of our clients, believes the legislation has a good chance of passing. (And who am I to argue with "Busted by the Feds"?) So, what does this most excellent piece of legislation actually do?

First, the bill would amend 18 U.S.C. 3553(f)(1) to extend the federal safety valve to defendants in criminal history category II.  That's something.

Second, the bill would make the Fair Sentencing Act of 2010 retroactive to most permitting them to file a motion for the district court to apply the penalties of the FSA to their case.  This could be huge. There are about 12,000 defendants who would benefit from such an approach, especially those whose new guideline sentence after Sentencing Commission Guideline 750 is far below the mandatory minimum sentence they are serving under the old law.

Third, and most significantly, the bill would amend federal mandatory minimum sentences.  It would directly amend 21 U.S.C. 841 (b)(1)(A) to reduce the mandatory minimum penalty from ten to five years.  The bill would also change the penalty after an 851 information is filed from twenty years to ten years, though there is no language which would remove a life imprisonment penalty if two 851 informations are filed.

The bill also makes changes to the mandatory minimums under 841(b)(1)(B), reducing the mandatory minimum from five years to two years, and changing the effect of an 851 information to require a mandatory minimum of five years instead of ten.  The bill also makes identical changes to the penalties set out in 21 U.S.C. 960.  The long and short of things is that the bill cuts most mandatory minimums in half, with corresponding changes to the effect of 851 enhancements.

Finally, the bill directs the Sentencing Commission to issue emergency amendments within 120 days to "ensure that the guidelines and policy statements are consistent with the amendments made by sections 2 and 4 of this Act and reflect the intent of Congress that such penalties be decreased in accordance with the amendments made by section 4 of this Act."  Well.  That's rather something.

Cross your fingers, everybody.

Recidivism and Registration

Everyone knows that all persons convicted of sex offenses are unstoppable monsters who give thought to nothing other than their next victim.  Well, not everyone- a recent study found that only 98% of respondents believe that most sex offenders will reoffend after conviction.  But the entrenched public perception that sex offenders pose a continuing danger to the community leads to overwhelming support for registration laws, support that the above study notes reaches above 90%.

Recent research suggests that the cure is much worse than the disease.  In a research paper funded by the Department of Justice (though not published, the text is careful to note) entitled Sex Offenders: Recidivism and Collateral Consequences, the authors examine the results of a pair of studies conducted in New Jersey. These studies examine the recidivism rates of sex offenders released before and after New Jersey passed a sex offender registration statute, and attempt to determine the characteristics of sex offenders who did recidivate.

These studies demonstrate that the existence of a registration scheme did not lead to lower recidivism rates. The authors conclude that "highly important for policy, SORN cohort status (e.g., being a sex offender released since the enactment of SORN) did not significantly predict sex or general recidivism."  What did predict recidivism rates was an unusual series of offender characteristics which indicated a high risk of reoffense. The factors that distinguish these high-risk offenders include: (1) a drug problem, (2) a rape conviction, (3) a previous victim who was a stranger, and (4) a prior arrest for a non-sex offense.

But the problem is not simply that the registration scheme in New Jersey is ineffectual- it actually makes things worse.  Registration and community notification requirements make offenders less likely to live with friends and more likely to have to relocate.  The result is that sex offenders become alienated from the protection of friends and their community support system.  As the paper concludes,

"In the end, the results from Study #1 and Study #2 add to the growing body of literature
questioning the universal application of registration and notification procedures  Specifically, these findings suggest that SORN is not likely an effective deterrent for sex offender recidivism (which by itself is not a highly likely occurrence) and may produce an environment with specific collateral consequences that inhibit
reintegration efforts post-prison release for sex offenders."

These studies both demonstrate that most sex offenders have vanishingly low recidivism rates, and show that punitive levels of supervision are criminogenic.  While obviously relevant at the policy level, this study also badly undermines the government's arguments about application of the 3553(a) factors in a federal SORNA prosecution.  If offenders who were not required to register prior to passage of the statute recidivated at the same rate as offenders required to register, what exactly is the point?

Tuesday, November 5, 2013

Security Classification in the BOP

The entire policy is laid out on the BOP website here.  Let's talk about how to manage the process to the extent possible.  Here are the benchmarks for male inmates.  All levels assume that no public safety factor (which we will cover in a subsequent post) applies.

0-11 points-       Minimum
12-15 points-     Low
16-23 points-     Medium
24+ points-        High

There are a number of things that can add points: offense severity, criminal history, history of violence, prior escapes, active detainers,age,  lack of education, and drug or alcohol abuse.

Monday, November 4, 2013

Proffer Disclosure and Prosecutorial Ethics

Ever sat in the U.S. Attorney's Office reading a proffer that you couldn't take home to study?  Ever done so three days before trial?  Ever thought that there might be something, just a little something, wrong with that?  Reasonable people agree with you.

In a recent law journal article regarding prosecutorial ethics, the particular reasonable person that agrees with you: (1) has a firm grasp and and articulate sense of the ethical duties of prosecutors, and (2) works for the Kansas Disciplinary Administrator's Office.

In her law journal article entitled "Prosecutors' Discovery and Disclosure Requirements After Lafler v. Cooper", Kim Knoll unpacks the Supreme Court's constitutionalization of the plea bargaining process as it impacts discovery requirements.  The upshot of her most fabulous analysis is that a prosecutor's duties to disclose are governed not just by their statutory duties, but by their (wut?) ethical requirements.

An important component of this inquiry is the realization that proof of an ethical lapse does not require evidence of prejudice to the defendant.  While habeas claims often founder on the shoals of proof that the defendant suffered prejudice from the prosecutor's failure to disclose, no such requirement exists in the ethical context.  There, wrong is wrong.

The Supreme Court's recent decision in Lafler also moves the chains by imbuing the plea bargaining process with constitutional protections previously unrecognized.  As Kim observes,

"the Lafler decision has opened the door to a whole new level of scrutiny of prosecutorial disclosure decisions.  It is reasonable to interpret ABA Model Rule 3.8(d) to require disclosure of all types of information before disclosure is constitutionally or statutorily required.  Disclosure must be made early enough for the information to be usable by the defense.  The analysis of whether the disclosure is timely will always be viewed through the eyes of the defendant.  A prosecutor who withholds material that will eventually require disclosure runs the risk of failing to make a timely disclosure."

The nuance and common sense of the entire article is difficult to succinctly summarize here.  While Lafler does not alter the prosecutor's obligations to disclose purely incriminatory evidence, it badly erodes the artificial distinction between exculpatory and impeachment evidence.  You, dear reader (both of you), would be well served to review the article in its entirety.

Tuesday, October 29, 2013

Professor Tom on Challenging Supervised Release Conditions

Now and then, we will provide for you the erudite, well-crafted, and long-winded musings of Professor Tom. For the inaugural edition, Tom delves into challenges to supervised release conditions.

Discretionary conditions of SR must meet three statutory requirements: (1) that they be “reasonably related to” the § 3553(a) sentencing factors, with the exception of “just punishment” (§ 3553(a)(2)(A))’ that they “involve[] no greater deprivation of liberty than is reasonably necessary” for the relevant sentencing purposes; and (3) that they be consistent with relevant USSC policy statements. 18 U.S.C. § 3583(d)(1)-(3). Recent appellate cases suggest that some discretionary conditions of SR may be vulnerable to challenge.


Score one for the surveillance state.  On March 15 of this year Shawn Turner was arrested after a gun was found in a vehicle he shared.  After being charged federally, Mr. Turner moved to suppress.  In order to establish links between a search of Mr. Turner's person and the search of the car, the police made a number of factual assertions.  The testifying officers claimed that: (1) Mr. Turner consented to a pat-down search, (2) the gun they found was in plain view on the floorboard of the vehicle next to Mr. Turner, (3) Mr. Turner was nervous and fidgety during the encounter, and (4) Mr. Turner ignored the officers' commands to keep his hands out of his pockets.  All in all, a rather bleak factual landscape from Mr. Turner's perspective.

Enter the Tasercam.  What's that, you say?  A miniaturized pocket camera capable of emitting electrical current causing neuromuscular incapacitation?  Can I have one?

No and no.  The Tasercam was just a small video camera mounted on one officer's glasses.  But this video made all the difference to the district court's opinion suppressing the evidence.

On the issue of consent- "Officer Ralston testified that he asked Defendant if he could pat him down for weapons and that 'he consented.' The video does not support this testimony."

On the issue of nervousness- "the video does not corroborate the officers' testimony that Defendant was nervous. In contrast, it is apparent from the video that Defendant was relaxed and comfortable for the duration of the encounter."

On the issue of ignoring officer commands- "They agreed that he was cooperative, and this is corroborated by the video. It is not evident from the video that Defendant disobeyed Officer Ralston's directive to keep his hands out of his pockets. In fact, he complied with that directive."

On the issue of plain view- "The officers had been searching and looking through the driver's side window and/or door for several minutes prior to Corporal Green discovering the firearm, yet inexplicably, neither officer saw a yellow or gold handgun in a holster on the floorboard of the vehicle." 

Concluding that "are many inconsistencies in the record between the Topeka Police Officers' testimony, and the video recording of the encounter" the Court suppressed.  

Did you know to ask for Tasercam video in discovery?  Now you do.

(Disclosure Note- this is a Federal Defender's Office case.  Actually handled by the Federal Defender. Which makes it rather embarrassing that the Federal Defender's blog got scooped on this case by Sorry, Melody.)

Tuesday, October 22, 2013

The Definition of a Conviction

In United States v. Elliot, the Eleventh Circuit just reviewed the question of how to determine whether your client's deferred adjudication is a conviction.  Mr. Elliot had been charged with a robbery in Alabama, and had received a youthful offender adjudication.  Alabama law specifically provides that youthful offender adjudications do not count as criminal history.

All very interesting, says the Eleventh Circuit.  But the Elliot Court found that this youthful offender adjudication not only counts as criminal history, but serves as a career offender predicate underlying a life sentence.  Ouch.  The court reasoned that the definition of "conviction" is a federal law question.  No matter what the state law says, U.S.S.G. 4B1.2(c) provides that a prior conviction may be established by guilty plea, jury verdict, or nolo contendre plea. The Elliot Court then looked to a number of prior cases in which the defendant had entered a nolo contendre plea, and adjudication was withheld, but the resulting proceeding was deemed a conviction under federal law.  Applying that precedent, Elliot concluded that no matter what the state of Alabama thinks, a youthful offender adjudication counts as criminal history because it is analogous to a nolo plea.

While we do not endorse the reasoning in Elliot, the case serves as a stiff reminder to refrain from assumptions drawn from state law when analyzing the status of a prior proceeding under the guidelines.  Mr. Elliot is serving a life sentence because a youthful offender adjudication which is not criminal history under state law served as a career offender predicate offense in a federal prosecution.

Your result may be different, however, if the application of the Armed Career Criminal Act (18 U.S.C. 924(e)) is at issue.  To determine which priors constitute violent felonies under 924(e), what constitutes a conviction is determined in accordance with the law of the jurisdiction in which the proceedings were held. 18 U.S.C. § 921(a)(20).

Monday, October 21, 2013

ACLU v. NSA over Criminal Surveillance

The ACLU has filed this lawsuit over NSA surveillance information being used in criminal cases.  As reported here, the Supreme Court dismissed the ACLU's last effort to obtain information about the NSA's surveillance programs because the ACLU lacked evidence that it had been targeted by the surveillance programs.  (See Clapper v. Amnesty International USA)

The suit, filed in the Southern District of New York, alleges that since the Clapper decision, in which the Government's briefing assured that it would notify defendants if NSA surveillance information was relied upon during the prosecution, not one defendant nationally has been notified of NSA involvement in their cases.  I apologize for the length of the last sentence.  Point being, NSA information is still being employed, and defendants are not being told.  At all.  So the ACLU has filed a FOIA request.

Along the same lines, the Electronic Frontier Foundation has filed an amicus brief authored by recent Kansas federal defender CLE presenter, Oakland A's fan (forgive the apostrophe) and all around bad man Hanni Fakhoury challenging similar DEA intelligence gathering.  The potential scope of DEA data gathering outlined by Hanni's brief is breathtaking, and worth your time.  Also, thanks very much to Hanni for donating his time to our presentations in Wichita and Lawrence.  He was fantastic, and we profoundly appreciate his service.

Friday, October 11, 2013

Think Twice Before Waiving 3582(c) Rights

Most versions of the standard plea agreement in Kansas have an appellate waiver, and most versions of that appellate waiver include a waiver of your rights under 18 U.S.C. 3582(c).  This is the statute that gives district courts jurisdiction to resentence a defendant when the Sentencing Commission enacts a retroactive change to the the guideline under which the defendant was sentenced.  The most recent example of litigation under 3582(c) is the application of Sentencing Guideline amendments 706 and 750, which led to the reduction of hundreds of crack sentences in Kansas.

Another change is on the horizon.  The Smarter Sentencing Act, (currently in committee) would rejigger mandatory minimum sentences downward, and direct the Sentencing Commission to alter the guidelines accordingly.  The Act would also retroactively apply the Fair Sentencing Act changes to the crack cocaine guidelines.  Both developments raise a strong possibility of retroactive guideline amendments.

If this Act becomes law, there will be some defendants who are very, very sorry that they waived their rights under 3582(c), because they will have no jurisdictional vehicle to achieve relief to which they would have otherwise been entitled.  Make sure when you negotiate your cases that you are getting market value for any decision to waive 3582(c) rights.  Preferable to that, negotiate such a waiver out of your agreement.

The Sordid History of 851 Informations

In United States v. Kupa, Judge Gleeson authors a primer on the use and abuse of 851 sentencing enhancements.  The opinion starts by noting:

"My focus here is narrow and my point is simple: as the defendant Lulzim Kupa’s 
case and countless others show, the government abuses its power to file prior felony 
informations in drug trafficking cases. The single most important factor that influences the 
government’s decision whether to file or threaten to file a prior felony information (or to 
withdraw or promise to withdraw one that has previously been filed) is illegitimate. When it 
enacted § 851 in 1970, Congress had in mind the world that DOJ asked it to create, in which 
federal prosecutors would carefully cull from the large number of defendants with prior drug 
felony convictions the hardened, professional drug traffickers who should face recidivism 
enhancements upon conviction. But instead federal prosecutors exercise their discretion by 
reference to a factor that passes in the night with culpability: whether the defendant pleads guilty."

After cataloging the abuse of 851 informations, and the "bonecrushing" sentences which have resulted, Judge Gleeson turns his attention to the 2013 changes Attorney General Holder has made to 851 policy.  Finding them sorely lacking, Judge Gleeson concludes that,

"Attorney General Holder’s admirable leadership toward sentencing reform
should lead him to refocus his attention on prior felony informations. If DOJ cannot exercise its
power to invoke recidivist enhancements in drug trafficking cases less destructively and less
brutally, it doesn’t deserve to have the power at all."

Thursday, October 10, 2013

Using your iPad to It's Fullest Potential

Did you know you can use your iPad for more than just checking emails, browsing the web and watching movies on Netflix?

Your iPad can be a powerful tool to help you manage your cases, review discovery with clients, obtain electronic signatures on documents, take notes, play videos/audio files, display exhibits at trial and create and show slideshows, just to name a few.

Below are a few applications that are highly recommended to purchase and download to put your iPad to work for you.

PDF Expert - $9.99 (download to the iPad from the app store)
Full PDF abilities including annotations, sort, e-mail, print, search, indexing, separate pages, playing videos, viewing Microsoft Word documents and much more

UPAD - $4.99 (download to the iPad from the app store)
Take hand written notes, save as PDF and e-mail. Allow client signatures on release forms.

Pages, Numbers and Keynote - $9.99 each (download to the iPad from the app store)
MS Office compatible apps for opening and editing Word, Excel and PowerPoint files.

iTools  - FREE (dowload and install on your PC or MAC)
Easily copy client files and folders between your computer and the iPad

Freemake Video Converter   - FREE (download and install on your PC) 
Convert multiple video format to standared MP4 for playback on iPad and other devices

Free Video Tools - FREE (download and install on your MAC)
Convert multiple video formats to standard MP4 for playback on iPad and other devices

Camtasia Studio - $299.00 (download and install on your PC or MAC)
Capture proprietary video and convert to MP4, create clips, zoom in, add closed captioning and more

Adobe Acrobat XI Pro- $449.00 (download and install on your PC or MAC)
creation, cropping, sorting, forms, annotations, text recognition, indexing, separate pages and more

Amazing new report on government surveillance

Rachel Levinson-Waldman has authored a new report for the Brennan Center for Justice entitled What the Government Does With Americans' Data. Fun facts from the report:

  • NSA's PRISM data collection program may well be reading your emails.  While putatively targeted an non-citizens, the data of Americans can be collected if "incidental" or because the NSA presumes, in the absence of information as to a person's citizenship, that the person is a non-citizen.
  • The NSA has your phone call metadata. Since just after 9/11, the NSA has collected data from phone companies on who calls who, and for how long.
  • "Suspicious Activity Reports" can get you put into a federal terrorism database.  The second-most common type of SAR is taking pictures of a building. The standard for inclusion on this list is lower than reasonable suspicion.
  • The FBI has employed their sweeping surveillance power in investigations of Greenpeace, Catholic Worker, and PETA.
  • FBI employees have accessed its massive information databases to look up exotic dancers and celebrities they "thought were hot". 
  • The NSA is almost done building a massive spy center in Utah where about 100,000 square feet of space will be devoted to housing computer servers.  The better to watch you with.
This report is an impressively comprehensive assessment of the ways in which the Government monitors, uses, and retains your data.  Thanks to Ms. Levinson-Waldman for assembling it, and good luck to her in dealing with the elongated TSA screens which surely await her now.

For more information on protecting your own data, visit the website of the Electronic Frontier Foundation (more on this organization soon).  Among other tools available at their site, EFF has created a browser extension which helps encrypt your communications with major websites.  Download it here.

Wednesday, October 9, 2013

Other Crimes and 3553(a)

While the sentencing court is permitted to examine the whole picture when sentencing a particular defendant, it may not base it sentence on suspicion that the defendant has engaged in some shadowy, nefarious conduct without record support.  Yesterday, in United States v. Van, the Sixth Circuit reversed a sentence based on the district court's conjecture that there was “something more going on here than a mere misuse of a phony identification.”  The defendant was caught using a false social security number, which the district court suspected indicated that the defendant was engaged in a more wide-ranging criminal enterprise than was apparent from the record.  Because of the court's suspicions, Mr. Van received a 9 month sentence when the guideline range was 0-6 months.

The Sixth Circuit reversed, but began by rejecting the defendant's procedural reasonableness argument. Van had not objected to the court's decision to base its sentence on speculation about the his conduct, so the Sixth Circuit held it could not find plain error.  The Van Court did, however, find an abuse of discretion concerning the substantive reasonableness of the sentence.  The takeaway line from the opinion is "[e]ven if a district court relies on a large number of relevant factors, we must vacate and remand for resentencing if the court considers an impermissible factor in calculating a defendant’s sentence."  In Van, the district court's speculation that Mr. Van was up to no good was not based on the record, and was therefore an impermissible factor, rendering the resulting sentence an abuse of discretion.

A similar issue presents when a district court relies on the defendant's arrest record when imposing sentence. Arrests which do not result in convictions may not serve as the basis for an upward departure. U.S.S.G. § 4A1.3(a)(3). But be careful- if you do not object to the facts listed in the PSR concerning the prior arrest, those facts are fair game for the district court. United States v. Mateo, 471 F.3d 1162 (10th Cir. 2006). While a district court that reasons from the existence of prior arrests is considering an impermissible factor, the court can consider any facts to which you did not object in selecting a sentence above the guideline range.

Tuesday, October 8, 2013

Reminder: CLE Next Week

Remember, next week is our annual CLE program, Thursday in Wichita and Friday in Lawrence. There are some changes this year:
  • We've opened it up to state practitioners,  as there are a number of cross-over topics.       
  • New venue in Wichita: the Wichita Bar Association, 225 N. Market, Ste 200.                                
  • New venue in Lawrence:  The Eldridge Extended, 8th and Vermont.                                           
  • All  materials will be distributed in advance electronically. If you need a paper copy, print it before you come, as none will be available on-site.  
  • Lunch is on-your-own, but . . .                                                                                                       
  • . . . . social hour  begins at 4:00 pm at a yet-to-be-designated spot (taking suggestions for both venues).
It's not too late to register, just email and she'll get you set up. Registration begins at 8:00 am and the program at 8:45 am. Six hours of CLE credit, and there is no fee.

The full schedule is here:

Monday, October 7, 2013

A Life Sentence on the Installment Plan

In the halcyon days before the PROTECT Act, federal supervised release didn't have such an eternal feel.  Say you were convicted of a class C felony, like being a felon in possession of a firearm.  The statutory maximum for your violations of supervised release is two years. When that mean old P.O. sent you back to prison for fourteen months (due to what I am sure were trifling violations of your release conditions) and you re-emerged into society on a new term of supervised release, your exposure to more prison time was limited.  With a statutory maximum of two years, the term you had served (14 months) meant that you only faced an additional 10 months in custody for future violations of supervised release, no matter how scurrilous and reprehensible your behavior.

Those days are gone. They have been gone since the passage of the PROTECT Act in 2003, but almost no one in Kansas noticed until now, as practice under the old statute continued.  But the Tenth Circuit has recently spoken on this issue, aligning itself with all other circuits to preclude aggregation of prior sentences.  Here is what the PROTECT Act did: it added language to 18 U.S.C. 3583(e)(3) that a defendant could not be sentenced to imprisonment beyond the statutory maximum "on any such revocation".  (The statutory maximums are 5 years for a Class A felony, 3 years for a Class B, 2 years for a Class C or D, and one year for any other crime.)

"Any such revocation", says the Tenth Circuit, means any time a person gets revoked, their sentence is bounded only by the statutory maximum.  United States v. Hunt, 673 F.2d 1289 (10th Cir. 2012). Poor Mr. Hunt was revoked and sentenced to twelve months and a day, followed by more supervised release.  Upon release, he continued to sample cocaine, and was revoked again and sentenced to twelve months and a day again.  Under the old regime, upon release Mr. Hunt would have been free to abuse substances to his heart's content, because his two sentences would have been aggregated and would have reached the statutory maximum.  But in this cruel new world, Mr. Hunt's continued misbehavior earned him an additional sentence of eighteen months.

"Wait", you protest, "our Mr. Hunt is now serving more time than the statutory maximum!  Forty-two months in all!  And the statutory maximum is thirty-six months!"  Had you been listening, of course, you would recognize that there is no aggregation principle at all anymore- "any such revocation" means just that.  The district court is limited only by 18 U.S.C. 3583(h), which dictates that the, "length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release."  So, once a defendant has served thirty-six months or more on a class C felony, supervised release, and the opportunity to violate the conditions of supervised release, may no longer be imposed.

While this eventual limit on additional terms of supervised release has presumably relieved Mr. Hunt of his cyclical imprisonments, 3583(h) provides little comfort for other defendants.  Many narcotics conspirators, sex offenders, and terrorism defendants face a potential lifetime of supervised release.  For these defendants, there is no statutory maximum, and each can be returned to prison for five years at a time, re-emerging on supervised release forever.  

Friday, October 4, 2013

We're Not Shut Down

Years ago, we ran another blog concerning issues affecting the defense of federal criminal cases.  That blog slowly withered, so we are starting over here.  We aim to present an active discussion of issues including the sentencing guidelines, substantive criminal law, evidence, the Bureau of Prisons, and developing intersections between technology and the law, with perhaps a dash of neuroscience thrown in.  Your contributors will include Melody Evans, the new Federal Public defender for Kansas, the erudite if wordy Tom Bartee, Kirk Redmond, Tim Henry, Sandy Schnack, and all the guest bloggers we can rope into contributing.

On this page, you can subscribe to receive email updates for new posts.  You can also click through to a number of excellent and active blogs listed under our blog roll.  Contact us with questions, ideas, or comments.