Sunday, May 25, 2014

Feds to Videotape Custodial Interrogations

Way overdue,
WASHINGTON — The Justice Department said Thursday that the F.B.I. and other federal law enforcement agencies would be required to videotape interviews with suspects in most instances, bringing the federal government in line with the practices in many state and local jurisdictions.
Full NYT article here.

From the actual USDOJ memo,
This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody in the circumstances set forth below.
Generally, this applies to custodial statements, post-arrest and pre-Rule 5, in connection with all federal crimes. Recording is to begin "as soon as the subject enters the interview area or room and will continue until the interview is completed." There are some exceptions to the presumption, of course, but any exceptions must be documented by the agent and reviewed.

July 11, 2014, is the effective date.

Saturday, May 24, 2014

Civil Rights Restored

This is a short but interesting unpublished Tenth Circuit opinion -- laudable because tenacious defense work resulted in dismissal of the felon-in-possession conviction based on state restoration of civil rights, and interesting (to appellate wonks) because the Circuit certified a question to the New Mexico state supreme court.

Here's the entirety of the opinion,
In this appeal James Reese asks us to overturn his conviction for being a felon unlawfully in possession of firearms. See 18 U.S.C. § 922(g)(1). Overturned because someone (like himself) previously convicted of a felony may lawfully possess guns if he “has had civil rights restored.” 18 U.S.C. § 921(a)(20). To show that he has had his civil rights restored, a defendant in Mr. Reese’s shoes must prove that he enjoys the right to vote, serve on a jury, possess firearms under state law, and hold public office. United States v. Maines, 20 F.3d 1102, 1104 (10th Cir. 1994). From the outset of this appeal, everyone has acknowledged that Mr. Reese enjoys three of these four rights. The only question we have faced is whether Mr. Reese is entitled to hold public office under New Mexico state law. Given the uncertainty of state law on that question, we certified it to the state supreme court. 
That court recently returned an answer: at all points relevant to this case Mr. Reese has enjoyed the right to hold public office. See United States v. Reese, No. 33,950, 2014 WL 1716526, at (N.M. May 1, 2014). In light of this guidance, the government acknowledges that Mr. Reese’s federal firearms conviction is unsustainable. So it is we reverse Mr. Reese’s conviction and remand this matter to the district court with instructions to dismiss the 18 U.S.C. § 922(g) charge against him. The mandate shall issue with the entry of this order on the docket. 
The rule on certification is U.S.Ct. of App. 10th Cir. Rule 27.1, and for more on restoration of civil rights as a defense to a 922(g)(1) felon-in-possession charge under Kansas law, see US v. Baker 508 F.3d 1321 (10th Cir. 2007).

Sunday, May 18, 2014

Delay and Credit

This scenario seems increasingly common: your client is serving a state sentence and is also indicted on new charges in federal court. Rather than writ your client from state custody to appear in federal court, the government decides to let the state sentence run out. Then the federal detainer will finally kick in and your client will eventually, perhaps years later, appear in federal court. 

The most practical and real prejudice from this delay is the lost opportunity for concurrent sentences, which "could be irreversibly compromised in [certain] . . . circumstances." US v. Cone, 310 Fed. Appx. 212, 220 (10th Cir 2008). While not necessarily entitled to concurrent sentences, it is often a beneficial term of a plea agreement or may be requested at sentencing. Courts usually have discretion to run sentences concurrently or consecutively. Setser v. US, 132 S.Ct. 1463, 1468 (2012); see 18 USC section 3584.

Two thoughts: On the front end, if your client is in this trap, then the Speedy Trial Act requires the government to act rather than wait. Subsection (j) of 18 USC 3161 provides that when the government attorney knows that the indicted person is serving a different sentence in a penal institution, then the AUSA must "promptly" get the defendant to federal court (probably by writ), or at least file a detainer and notify the defendant of the right to demand a speedy trial. There are some cumbersome procedures outlined, but most likely the attorney can make the demand for the client, triggering the government's obligation to act. (This is different from the Interstate Agreement on Detainers Act). 

Second, if the delay has already occurred, dismissal is a debateable (read: unavailable) remedy (see Cone, supra). The more likely avenue of relief is a sentence adjustment under USSG 5G1.3. Subsection C talks about "undischarged term of imprisonment", that is, the remaining portion of the state sentence. But, as usual, the substance is in the application notes, 
3.(A) . . . In order to achieve a reasonable incremental punishment for the instant offense and avoid unwarranted disparity, the court should consider the following:
(iii) The time served on the undischarged sentence and the time likely to be served before release, 
 (v) Any other circumstance relevant to the determination of an appropriate sentence for the instant offense.
The court adjusts the federal sentence to account for the delay by subtracting time served on the state sentence from the calculated federal sentence, then ordering the remainder to run concurrently. (Guideline example after the jump). Note the "unwarranted disparity" language from 18 USC 3553(a)(6), which lends statutory authority to the argument. 

Again, this is a sentence adjustment, not a departure or variance. This matters for good-time credit purposes, as explained here.

A couple of other notes. In the Application Note 3.(D), in complex situations, the Court may "fashion a sentence of appropriate length and structure it to run in any appropriate manner to achieve a reasonable punishment for the instant offense."  Second, remember under Setser, the Court may sentence concurrently or consecutively to an anticipated but not-yet-imposed sentence from another court. 

Finally, if the federal court is silent on the concurrent/consecutive issue and your client is not in primary federal custody (the state sentence will be served first), BOP will parsimoniously impose consecutive sentences, even if the state court says the the sentences shall run concurrently. After all, BOP never misses a chance to over-incarcerate.    

Wednesday, May 7, 2014

Research Tip, En Pointe

From the erudite and graceful Tom Bartee,

The Congressional Research Service, technically a branch of the
[A photo, book-in or otherwise, of Tom Bartee
could not be located;
this is "Tom Bartee" google image.]
Library of Congress, provides research for members of Congress and their staff, including analyzing and drafting legislation and generating reports. The CRS, with hundreds of employees and a budget of over $100 million, is prolific. Although the CRS doesn’t directly publish its reports, the Federation of American Scientists gathers the non-confidential ones and makes them available on-line. Reports include legislative history research, statutory construction (a real page-turner, by the way), congressional authority to regulate firearms, electronic privacy, the aggravated identity theft statute, obstruction statutes, and the list goes on. Really a great resource. The link to CRS reports posted by the FAS is

-- Melody

Saturday, May 3, 2014

No Second Bite at the Apple: Criminal History

Sometimes, maybe too often, we allow our jaded, tired assumptions to prevail -- it is not worth objecting to quotidian matters because the government will ultimately win. Sometimes we are wrong, and we should take a fresh look at the routine.

Lesson from a recent Tenth Circuit case, US v. Thomas. The PSR attributed a number of prior convictions to Mr Thomas, elevating his criminal history score to CHC V. But "Mr. Thomas demanded proof of the convictions", as is his right. Once this demand was made, the burden fell on the government to prove the convictions by a preponderance of the evidence. The government (concededly) failed to do so on five, yes, five, of these alleged prior convictions; reversed and remanded.

All well and good. Now remanded, the government proves up the convictions and we are back at the same place had we not bothered to object. Right?

Wrong. In Thomas, the Court scrutinized the government conduct at the original hearing. Although such resentencings are generally de novo, in certain circumstances -- such as this one -- different considerations apply that lead to a different result,

● The government bore the burden to prove the prior convictions;

● Mr. Thomas alerted the government to the deficiency in its proof;

● the government made no effort to cure the deficiency in its proof.

Thus, the Court "decline[d] to give the government a second opportunity to make the record that it failed to make the first time. Thus, on remand, the district court must recalculate the criminal-history score based on the existing record." No second bite for the government.

[The Court left open the issue of whether the additional two points for being on supervision when the new crime occured (USSG section 4A1.1(d)) applies when that underlying conviction was not proved up, and therefor not counted.]