Sunday, November 30, 2014

Cert. Grant: San Francisco v. Sheehan; The Fourth Amendment and the ADA

Police shootings are popular subjects right now. Last week, the Supreme Court agreed to hear a case involving an incident at a group home for mentally ill individuals in San Francisco. Officers shot, but did not kill, Teresa Sheehan, a woman whom they knew to suffer from mental illness, as she attempted to attack them with a knife. Of course, the story is more complicated than that. Sheehan's attorneys describe the knife as "a bread knife." And the officers entered Sheehan's room after she told them not to.
Anyway, the case gives rise to two issues:

(1) Whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody; and
(2) whether it was clearly established that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable under the Fourth Amendment by reason of the anticipated resistance of an armed and violent suspect within.

Justice Breyer is recused (his brother, a federal district court judge in California, heard the case below).

The lower courts are split on whether the ADA applies to arrests. The Tenth Circuit has said it can. In Sheehan's case, the Ninth Circuit agreed, noting two plausible claims: (1) wrongful arrest, where police wrongly arrest someone with a disability because they misperceive the effects of that disability as criminal activity; and (2) reasonable accommodation, where, although police properly investigate and arrest a person with a disability for a crime unrelated to that disability, they fail to reasonably accommodate the person's disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity in that process than other arrestees.

The case deals with the second claim, and it does so in the context of a civil rights action (pursuant to 42 USC 1983) at the summary judgment stage. But the decision the Court ultimately writes will be the first from the Court on the relationship between the ADA and the Fourth Amendment. We should learn whether an individual's disability can alter the Fourth Amendment's reasonableness analysis and (possibly) glean clues as to the plausibility of suppressing evidence obtained in violation of the ADA (and the Fourth Amendment). It is certainly a case worth watching if you are presented with a mentally ill client whose arrest related to the illness.
We will keep track of this case as it makes its way to final decision.

Friday, November 28, 2014

Proposition 47 Revisited

In earlier posts, we discussed California's recently-enacted Proposition 47 (reducing some felonies to misdemeanors) and the Collateral Consequences Resource Center. Well, it turns out the Resource Center has a good information on Proposition 47, available here. David Freund, an Assistant Federal Defender in Wichita, noticed the post. Here's a blurb from it on the importance of the retroactive effect of California's new law:
While Proposition 47 gained popular support as a way of reducing California’s prison population, its broadest and most significant long-term effect may be to reduce the impact of collateral consequences on people in the community.  For criminal defense lawyers, Proposition 47 offers a significant way to reduce a client’s exposure in subsequent prosecutions.

From Dave:
Prop 47 is definitely something to keep in mind if you handle federal cases, and if you have any state court clients with prior California convictions for covered offenses.

With the passage of Proposition 47, certain low-level, nonviolent felonies can now be changed to misdemeanors on old criminal records. If you or someone you know has a prior criminal record with a felony record for any of the following crimes, you may qualify to remove the felony from your record and change it to a misdemeanor:
Shoplifting, i.e. Commercial Burglary of $950 or less of a Store during Business Hours (PC §459) 

Forgery of $950 or less (PC §470-476)

Fraud/Bad Checks of $950 or less (PC §476a)

Grand Theft of $950 or less (PC §487)
Petty Theft/Shoplifting of $950 or less (PC §§484, 484/666)

Possession of Methamphetamine (HS §11377)

Possession of Controlled Substance (HS §11350)

Possession of Concentrated Cannabis (HS §11357(a))
Receiving Stolen Property of $950 or less (PC §496)

Remember, these are prior California convictions. Keep this information handy in case you run into one in one of your cases.  

Thursday, November 27, 2014

DOJ And The Federal Prison Crisis

Johanna Christansen is the appellate division chief for the Federal Public Defender for the Central District of Illinois, an office also referred to as the Seventh Circuit Federal Defender. Among other things, Johanna runs a listserve (to subscribe to her once-a-week email service go here), summarizes 7th Circuit cases, and tracks issues pending in the Seventh Circuit. In her last email, she discussed this DOJ memorandum:

A memorandum issued by the Attorney General Office of Inspector General indicates that one of the critical challenges for the Department of Justice at this time is the “federal prison crisis.”  The memorandum states that the DOJ continues to face two interrelated crises in the federal prison system. First, despite a slight decrease in the total number of federal inmates in 2014, the DOJ is projecting that the costs of the federal prison system will continue to increase in the years ahead, consuming a large share of the DOJ’s budget. Second, federal prisons remain significantly overcrowded and face a number of important safety and security issues.
Of course, these concerns affect our clients who are facing terms of imprisonment in the BOP and should be considered when sentences of incarceration are imposed.

We thank Johanna for this information, and we encourage you to sign up for her listserve and to read this memorandum (and to use it if you can). 

Wednesday, November 26, 2014

Sock, Drugs, and Rock 'n Roll

Socks and drugs are before SCOTUS in January. Or, more precisely, drugs in socks (rock 'n roll provided by Buffalo Daughter). Guest blogger Michael Sharma-Crawford, an immigration attorney with the Kansas City firm Sharma-Crawford, is counsel of record in the case pending before SCOTUS, Mellouli v. Holder. The issue:
Whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act.
From Michael, 

Moones Mellouli was a lawful permanent resident. He was arrested for DUI in April 2010. At the jail he was found to have a couple of pills in his sock. The jail “identified” the pills as Adderall and he was charged with trafficking contraband. A plea was negotiated to possession of drug paraphernalia (to wit: a sock) but no specific drug, only the Kansas Uniformed Controlled Substance Act was mentioned in the amended information.  

Matter of Paulus, 11 I&N Dec. 274 (BIA 1965) is valid controlling authority in this factual scenario. As a lawful permanent resident, Mr. Mellouli was only subject to a ground of removability, thus the burden to prove removability belongs to DHS. Paulus holds that if the record of conviction is silent as to the drug and the state criminalizes drugs that are not included in the Federal schedule, removability cannot be proven. Documents which are admissible to determine the conviction are listed at 8 C.F.R. §1003.41.

DHS instituted removal proceedings. Using the police reports and the prior charging document the Immigration Court held that Mr. Mellouli was removable (those documents are not permitted pursuant to 8 C.F.R. §1003.41). The IJ ordered Mr. Mellouli removed and ignored Paulus as did the BIA in upholding the IJ’s decision. The 8th Circuit Court of Appeals upheld the BIA in deciding that despite Paulus’ explicit language, the Kansas conviction “relates to” a crime involving a controlled substance because it is “involving other conduct associated with the drug trade in general.” Matter of Martinez Espinoza, 25 I. & N. Dec. 118, 121 (BIA 2009). Moncrieffe v Holder seems to explicitly overrule such a broad brush approach to comparing criminal offenses to immigration consequences.

The question presented reverts to the original question in Paulus: does the government have to prove the drug for which the paraphernalia existed as a substance defined in 21 U.S.C. §802?

From the criminal side,

The ramifications of this case in criminal law have to do with proof. In Mellouli, as Michael describes, police reports and dismissed charging documents were  used to show the substance was Adderall. For ACCA or similar purposes, SCOTUS has, so far, limited the type of documents that can be used as proof when the modified categorical approach is applied. The Court talked about this last term in Des Camps, and will probably again this term in Johnson v. U.S., the sawed-off shotgun case. In Mellouli, the Court may also reach the question of whether a statute that "relates to" multiple substances is divisible in the first place.

Kate Evans at Federal Immigration Litigation Clinic at the University of Minnesota Law School picked up the case and filed for certiorari.

Thanks to Michael for guest blogging.

-- Melody

Tuesday, November 25, 2014

On Legal Writing: Redmond v. Hansmeier

From First Assistant Federal Defender Kirk Redmond:
End sentences with a preposition if you like. Rethink using Roman numerals for headings. Drop your citations to footnotes. Don't use Times New Roman (or Courier, you heathen). Avoid intensifying adverbs.
Do not assume that your reader knows everything that you do. Use the Oxford comma. Be concise, as this dissent. (Was Hansmeier the clerk?) Forego obscure acronyms (scroll to page 31). Correctly order statutory construction arguments.
Review the basics.

I'll respond to one suggestion (surprise!): relegating citations to footnotes. If you follow the link, the idea is championed by none other than Bryan Garner (the guy who edits Black's Law Dictionary). It is an interesting idea. He gives examples. In those examples, footnotes are a good idea. But the better idea is not to write the sentences in his examples. They are horrible. As a criminal defense attorney, here's my problem with citations in footnotes: courts sometimes think we are full of shit. And the only way we are not full of shit is if our words and ideas actually come from somewhere. So I use citations. All the time. If I were to relegate those citations to footnotes, I would write really long briefs. Because the thing is, citations in footnotes only shorten briefs (or whatever else) if the briefs (or whatever else) do not have that many citations.
Garner notes that he has critics on this issue, including Justice Scalia and Judge Posner. Add Paul Clement.
Don't get me wrong, I'm not anti-footnote. Long citations should be footnoted. Among other things. And, if you decide to go with Bryan and Kirk, I won't hold it against you. But the key, at least for me, is to learn to write shorter citations. Do you need to cite to docket entry No. 1? Try D.E.1. Need a pinpoint cite? D.E.1 at 1. Page 47 of Volume 1 of the Record on Appeal? How about something like R1 at 47. Or maybe just R1 47. The Tenth Circuit's Rules unfortunately encourage long citations (page 106). But the Rules also encourage you "to include a footnote in the briefs at the point of the first record citation to confirm the citation convention." I call this a loophole.
The other stuff is spot on (although I have no intention of abandoning my Roman numerals just yet).

Dan's premise that courts sometimes think we are full of shit is correct, and motivates my reasoning to drop cites to footnotes. The footnote offers a venue for fuller exposition of the case quote. After presenting the rule in the text, a footnote provides a place to set out multiple cases in support of that rule, with all of the relevant language laid out for the court. Remember your third grade math teacher exhorting you to show your work? Kind of the same thing here. This block of quotes would kill the narrative flow in the text, but works just fine in a footnote. I'm not arguing that your brief should look like a law review article, with three lines of text above 3/4 of a page of footnotes, but full exposition of the language upon which you rely is good for your credibility.

Dan's other suggestion about shortening record cites is completely right. A hybrid of the approaches makes sense to me. Drop a footnote when you need, and leave short citations in the text.

Monday, November 24, 2014

More On ACCA: The Reach of the Categorical Approach

We talk about the Armed Career Criminal Act (ACCA) quite a bit. It is the provision that punishes illegal gun possession with a 15-year mandatory minimum if the defendant has 3 or more prior violent felony or serious drug offense convictions. In determining whether a prior conviction qualifies as either of these things, the Supreme Court has instructed courts to use the categorical approach (or a modified version of it). The gist is that, when determining whether a prior conviction is a violent felony (or less often a serious drug offense), courts look only to the elements of the prior offense of conviction and not to the defendant's actual conduct. The approach seeks to avoid "subsequent evidentiary enquiries into the factual basis for the earlier conviction."
This recent Second Circuit decision discusses the contours of the approach. And, in doing so, the Court extends the categorical approach to another ACCA enquiry: whether prior convictions were committed "on occasions different from one another." This is also a requirement under ACCA. It typically comes into play when an individual goes on some sort of a spree (burglary, robbery), and it is unclear whether the crimes committed during that spree were committed "on occasions different from one another." Of note, the holding is consistent with Tenth Circuit precedent (see footnote 3).
Under plain error review, the Court vacated the sentence in this case and remanded for resentencing. It held that the district court relied on improper documents, including statements made in the PSR which drew from, inter alia, "arrest records" and "criminal complaints sworn to by attesting police officers."
It further noted that it is the government's burden to prove that the prior offenses happened on different occasions. "If evidence is not available," the government loses.   
At the end of the decision, the Court offers a nice, four-point summary (we recommend it).
Practically speaking, without police reports and the like, it is likely much more difficult for the government to establish that two close-in-time offenses were committed on different occasions. Especially if the available permissible documents are boilerplate charging documents and judgments. Those documents might lack the necessary detail the government needs to put your client in prison for a really long time. 

Sunday, November 23, 2014


From First Assistant Federal Defender Kirk Redmond:

The latest installment in a series of moral panics over drugs in America is methamphetamine. Meth is postured as the new crack, pilloried as the most dangerous drug in existence. Not so. Understated advertisement campaigns notwithstanding, methamphetamine is no more insidious than cocaine, heroin, or alcohol.
Scholars have begun to deconstruct the myth of a methamphetamine epidemic. Years ago, a letter from the medical community exploded the notion that a meth addiction is more difficult to treat than an addiction to other drugs. The Sentencing Project has stripped away media hyperbole about a spike in meth use. And most recently, a study from Columbia University has condemned the hyper-caffeinated claims about the harm wrought by methamphetamine, comparing the media hype to what happened with crack cocaine.
Judges are paying attention. In a future post, we will talk about the meth purity guidelines.

Saturday, November 22, 2014

Immigration Reform and Other Collateral Consequences

You've likely heard about the President's new initiative on Immigration Reform, coined an act of prosecutorial discretion. The Fifth Circuit blog has compiled a list of resources that explain the new policies. It is possible that these new policies could affect a client or two. Go here to read more.
Also, the Tenth Circuit blog recently posted a blurb about the Collateral Consequences Resource Center. Go here to check it out. We could all use a reference for collateral consequences.
More on collateral consequences, and particularly sex offender registration. In this decision, the Ninth Circuit affirmed a preliminary injunction issued against the enforcement of California's latest sex offender registration requirements. The requirements focused on the Internet, and the Court held that the requirements likely violated the First Amendment. Hence the preliminary injunction.
The case is related to recent litigation on similar conditions of supervised release, although the Court made clear that the requirements at issue were aimed at individuals who had served the entirety of their prison sentences (including terms of supervision). Interestingly, the Court drew a parallel between supervised release and parole. Yet, in doing so, it sent inconsistent messages, at one point noting that defendants are paroled before the completion of their sentences (correct), and at another suggesting that parole is imposed in addition to imprisonment (incorrect). Putting aside this confusion, the discussion is one that challenges basic notions of a sentence in federal court. Think about this the next time you appear for sentencing: the sentence imposed is imprisonment plus supervised release. So, if you ask for 5 years' imprisonment and 2 years' supervised release, you are asking for a 7-year sentence. And this frame of mind is particularly important in light of the restrictive conditions imposed by district courts and essentially rubber-stamped by the Tenth Circuit.
One last point: the diverging opinions coming from the appellate courts on these types of issues begs review by the Supreme Court. So keep preserving these issues. Just in case.

Friday, November 21, 2014

Even Really Old Rules Are Broken

In two cases over a half-century ago (McNabb and Mallory), the Supreme Court gave teeth to the prompt presentment rule (see Rule 5(a)), holding that any confessions made during a delay in presentment must be suppressed. Congress codified the holdings at 18 USC 3501(c), drawing a line at the 6-hour mark. In other words, any confession made by a defendant more than six hours after arrest is inadmissible if the defendant has not been "presented" to a judge (think initial appearance). The time limit is somewhat flexible (depending on distance and difficulty to the nearest judge).
Despite the rule's age, this recent Third Circuit decision is a great reminder that the rule is not always followed. There, officers interrogated the defendant past the 6-hour mark and prior to his initial appearance. The district court admitted the statements at trial, the jury returned a guilty verdict, and the court imposed a really long sentence (over 24 years). The Third Circuit reversed. It rejected the government's argument that the defendant's attempts to cooperate justified the delay. It mentioned, among other things, that "the longer a defendant goes without being apprised of his rights, the more vulnerable he is." It also discussed the problem with false confessions. It is a great read, and we encourage you to read it. You can also read more about the case here.
So, remember to check the time-stamp on any pre-presentment statements made by your client. If the statements were made more than six hours after arrest, you might have a colorable argument to suppress the statements.     

Thursday, November 20, 2014

Not So Fast: The Supreme Court and Structural Error

The great majority of trial errors are subject to harmless error review. See Fed.R.Crimp.P. 52(a). Some errors, known as structural errors, are not. We are reminded of this with the Supreme Court's per curiam decision this week in Glebe v. Frost.  In that case, the Ninth Circuit below held that a state trial court's restriction of defense counsel's closing argument was structural error that required a new trial. Ninth Circuit law is clear on this. The problem for the defendant is that Supreme Court precedent is not. In other words, the Supreme Court has never held that restricting defense counsel's closing argument amounts to structural error. Because this was a habeas case, and because the asserted right was not clearly established by decisions from the Supreme Court, the defendant ultimately lost.
This was not the greatest case in terms of establishing the impropriety of harmless error review. The defendant thrice confessed prior to trial, then took the stand at trial and confessed a fourth time. Defense counsel, in closing, sought to challenge the sufficiency of the evidence, as well as assert a duress defense. The latter argument might make sense; the former strains credulity. In any event, the state trial court told defense counsel to pick one defense and prohibited any alternative arguments. The attorney did the obvious and argued duress. On appeal, the Washington State Supreme Court held that the restriction on closing argument was error, but that the error was harmless.
So, as it stands now, the Washington Supreme Court says such restrictions on closing argument are harmless error (according to the State's petition, most other courts do as well); the Ninth Circuit says that such restrictions are structural errors not subject to harmless error analysis. The issue is an open one in the Supreme Court. As far as we can tell, it is an open question in the Tenth Circuit as well.
Moving forward, remember that structural errors are those that infect the entire trial process and render it fundamentally unfair (such as the denial of counsel, a biased judge, and other reasons mentioned here). And you want errors to be structural. Otherwise, the error could be harmless. Some errors obviously are not structural; if it is not obvious, make the argument.

Wednesday, November 19, 2014

Providing Services To Illegal Aliens Gets A Little Less Risky

The following summary is from Andrew McGowan, an Assistant Federal Defender in Topeka, and it is about this recent decision from the Seventh Circuit (a case, incidentally, that the Court reversed the day it was argued and, in an even more unusual move, ordered the release of the defendants on bond). Enjoy! 
Prosecutors in Indiana indicted the defendants for conspiracy to encourage illegal aliens to reside in the United States and to shield them from detection by providing a service that allowed illegal aliens to title vehicles and obtain license plates in Indiana. A second count charged conspiracy to commit mail and wire fraud because the defendants deprived the state of Indiana of “money and property.” The Court found serious, reversible problems with both counts.
On the first count, the defendants provided paperwork (for $350) to customers who did not have, and who usually could not obtain, a Social Security number, so that these customers could obtain an employer identification number (EIN) for their new Limited Liability Company (LLC). Under Indiana law, the EIN allowed vehicles to be titled in the name of the LLC, which allowed illegal aliens (some of the "customers") to legally own cars. To create the LLC and obtain the EIN number, the illegal aliens hid nothing: they used their own names and addresses, and everything that they did was perfectly legal. One of the problems with the government’s evidence was that it did not prove that it was just illegal aliens who would or could use the service. It could also help legal aliens who could not work because of restricted visas, as well as citizens who did not want to use their Social Security number to title a car. The defendants were convicted and sentenced from 2-to-7 years' imprisonment.
The Seventh Circuit vacated the convictions because, among other things, the government could not sufficiently distinguish what the defendants did from what a grocer who sold goods to an alien the grocer knew to be an illegal alien did or what a doctor who treated a person the doctor knew to be an illegal alien did. The Court noted that the defendants did not shield their clients from detection because they supplied the state with their correct names and addresses. The Court had other problems with the convictions, including that under the government’s theory Indiana itself might be criminally responsible. Because of these concerns and others (which are fun to read), the Court held that the portion of the statute that the government relied on did not apply to “the provision of goods and services that are attractive to unauthorized aliens, legally residing aliens, and citizens alike.” With any luck, this also shields lawyers who represent illegal aliens from being prosecuted.
On the second count, the government provided two different theories: 1) that false statements on the application to transfer title of the cost of the vehicle (some reported sales were for $100 or $200) reduced the amount of tax revenue to Indiana and 2) the defendants caused the state to have to retitle the licenses, even if it did not suffer any financial loss. A conviction on the first basis might have been okay if the second basis had been a crime. But it was not a crime because documents were not “property” (see this case and this case).
At trial, neither party (nor the judge) noticed this problem, so none of the defense attorneys objected to the jury instruction that allowed the jury to convict on this basis. Also, there was no unanimity instruction (in the Tenth Circuit, 1.24 of the Criminal Instructions) that required the jury to further explain the basis of the conviction. One practice note, the Court almost found that the issue was waived because there had been no objection to the jury instruction. But, fortunately, the defendants made a motion for judgment of acquittal that allowed the Court to address the problem because the Rule 29 motion essentially questioned the legality of the conviction. The problem was that there were two possible bases for the jury verdict, one legal and the other not. So, the conviction could have been based on either a proper or an improper basis. Had the question been only one of insufficiency of the evidence on either basis, then the verdict would have been upheld
But, because the basis for the conviction could have been legally insufficient, the Court remanded the case for a possible retrial. This case is another reminder that just because the government charges something doesn’t mean it’s a crime.

Tuesday, November 18, 2014

United States v. Morrison, Part II: More on Special Conditions of Supervised Release

Yesterday, we discussed one aspect of United States v. Morrison.
The case also concerned the imposition of two special conditions of supervised release. One was a ban on cameras; the other a ban on the Internet. Both bans had an identical exception: permission from the probation office. In other words, if a probation officer decides that it is ok for Mr. Morrison to possess cameras, or to use the Internet, then it is ok. If not, then it is not.
Now, initially, this delegation of authority would appear problematic. After all, district courts, not probation officers, impose sentences, and conditions of supervised release are aspects of a sentence. At least one court would have a problem with the conditions on this ground. Mr. Morrison made a delegation argument on appeal, but not in the district court. The Court refused to consider the argument, however, holding that he failed to develop the argument in his briefs (we've read the briefs and respectfully disagree).
Let's think about this argument for a second. The conditions themselves were outright bans; the delegation allows the probation office to lessen the prohibition. Without this delegation, Mr. Morrison cannot possess cameras or use the Internet; with it, maybe he can. Conditions of supervised release may be modified "at any time" via a motion filed pursuant to 18 USC 3583(e)(2). Rule 32.1(c)(1) provides that defendants have the right to counsel at modification proceedings. So, perhaps the better route in such instances is to wait until the defendant serves his prison sentence and is released on supervised release. If probation refuses to lessen the bans, then an attorney, on behalf of the defendant, can move to modify the conditions, knowing that a court cannot fall back on (a probably improper) delegation to the probation office. Just a thought.
Mr. Morrison ran into other procedural hurdles. The Court held that his attack on the Internet ban was waived because he did not object to it below. Typically, a failure to object results in forfeiture, and plain error review on appeal, but here the Court found waiver, meaning no appellate review whatsoever, because, when prompted to object by the district court (apparently this attorney objected regularly (and rightfully, we think) to these types of conditions), the attorney objected only to the camera ban and not the Internet ban. This, says the Tenth Circuit, was deliberate; the attorney "thought about the argument, used it to argue in favor of a lesser sentence, and then chose not to object to it." The lesser sentence argument was an interesting one, although it did not work: impose a shorter sentence because the defendant, when released, will serve a lengthy term of supervised release under extremely strict conditions. As this case highlights, try this argument at your peril.
In a footnote, the Tenth Circuit suggested that, even if it were to consider the issue, it would uphold the ban because "the Guidelines recommend that courts impose this special condition," citing USSG 5G1.3(d)(7)(B). The Tenth Circuit is wrong. This Guideline suggests that district courts impose conditions in child pornography cases "limiting the use of a computer," not prohibiting the use of a computer. There is an obvious difference between a limitation and a prohibition.
This is getting long. Briefly, the camera ban. We think this was completely inappropriate considering that the case has nothing to do with Mr. Morrison's use of a camera. As far as we can tell, there were no allegations whatsoever that he took, or attempted to take, pictures of children. Actually, we have no idea if Mr. Morrison has ever even owned a camera. So, why ban a camera? Because he had images of child pornography that someone else took with a camera? There is no logic in this. So, instead of logic, the Court relied on cases from other Circuits. Yet, if you actually read those cases, they are materially different from the facts and circumstances of this case.
Let's hope Mr. Morrison has a reasonable probation officer. After all, the purpose of supervised release is to reintegrate defendants into society; that is impossible with prohibitions like the ones imposed in this case. If all else fails, we hope Mr. Morrison knows of his right to move to modify these draconian conditions if they actually come to pass.      

Monday, November 17, 2014

United States v. Morrison, Part I: The 10th Circuit's Latest on the CP Guideline

The Tenth Circuit was busy last week. It published four relevant criminal decisions. We've already talked about three. This is the fourth: United States v. Morrison. Because of its significance, we've decided to break down the case in two separate posts (so you'll get Part II tomorrow).
The first issue the Court addressed in Morrison asked whether the district court gave too much deference to the admittedly flawed child pornography Guideline (USSG 2G2.2). The argument centered on the 2-level enhancement for use of a computer, an enhancement that is applied in almost every child pornography case. The Court did not deny that a district court could vary downward if it disagreed with the child-pornography Guideline, but it made clear that district courts do not have to do so. The Court further found the district court's brief explanation as to why it refused to do so in this case to be sufficient. The Court thus affirmed the sentence.
The facts of this case deserve mention. The defendant possessed 20,000 images of child pornography. He distributed child pornography as well. Although charged with both distribution and possession, the government allowed him to plead only to the possession charge, reducing the statutory penalty range from 5-to-20 years to a statutory maximum of 10 years. This is not something that happens in all jurisdictions. The effect of this charging decision also reduced the offense level by 4 (see 2G2.2(a)). The Guidelines range went from 151 months on the low end, to 121 months on the low end, to 120 months (the statutory maximum). The defendant received the 120-month sentence. In other words, there are likely more sympathetic cases than this one (although we do not mean to suggest that we think a 10-year sentence was reasonable in this case).
So this case does not mean that you should stop arguing for variances in child pornography cases. You should continue to make those arguments. The Guideline is still flawed, and the Commission has again identified its revision as a policy priority this upcoming year.
One last point: although the defendant did not raise a substantive reasonableness argument, the Court still noted that it "may" apply a presumption of reasonableness to within-Guidelines-range sentences. Tom Bartee, our Branch Chief in Kansas City, is at the Tenth Circuit tomorrow, and he is trying to convince the Court not to apply such a presumption in cases involving 2G2.2 (basically because the Sentencing Commission itself has said that the Guideline is flawed). There are actually Circuits that do not apply presumptions of reasonableness to within-Guidelines-range sentences. So the argument has some force (we think a lot of force).
More on this case tomorrow.

Sunday, November 16, 2014

How Not to Practice Law

Last week, in this published decision, the Tenth Circuit affirmed a contempt sanction on a criminal defense attorney.
The attorney had a penchant for continuances. After granting a few, the judge decided against any more and set a firm date for sentencing. The attorney agreed to this date. But ten days before the hearing, the attorney moved for a continuance because the sentencing date now conflicted with a planned family vacation (a vacation planned after the court set a final sentencing date). The judge denied the motion. The attorney went on vacation. He sent substitute counsel to the sentencing hearing, without the consent of the defendant, and so the judge was forced to continue the hearing. The judge also ordered the attorney to show cause why he should not be held in contempt. After a hearing, the judge held the attorney in contempt and fined him $2000. The attorney filed a motion for reconsideration. The judge denied it. The attorney appealed.
On appeal, the issue was whether the judge erred because it held the attorney in contempt pursuant to Rule 42(b), instead of Rule 42(a). Rule 42(b) allows a judge summarily to hold an individual in contempt if the contempt occurs in the judge's presence. If the contempt occurs outside of the judge's presence, Rule 42(a) provides for notice and an opportunity to be heard.
The decision is odd. The Court applies plain error review because the attorney never invoked Rule 42(a) below. It refuses to find plain error because it was not plain that the attorney's actions happened outside the judge's presence. Alternatively, the Court held that, even if plain error, relief would be unwarranted under the fourth prong of plain error review because the attorney essentially received all of the protections afforded under Rule 42(a).
This latter holding seems correct. In fact, we fail to understand how the district court proceeded under Rule 42(b) and not Rule 42(a). This was not a summary disposition; the attorney received a show cause notice and a hearing was held to determine the contempt issue (not to mention that the judge also entertained a motion for reconsideration following the contempt sanction). What more would Rule 42(a) require? In other words, the attorney's argument on appeal was frivolous.
The case highlights an odd aspect of Tenth Circuit jurisprudence: the alternative holding. It seems rare to read a Tenth Circuit opinion that does not include at least one alternative holding. But alternative holdings are not good. They make it almost impossible to separate holding from dicta.
The obvious practice tip from this case is not to do what this attorney did. In fact, do nothing even remotely close to it. And, if you are haled into court on contempt charges, invoke Rule 42(a).

Saturday, November 15, 2014

The Limits of 3582(c)(2) and Constitutional Failures

In 1998, a district court determined (without objection) that Alondo Gay distributed 9.6 kilograms of crack cocaine (roughly 20 pounds). He received a 22-year sentence (basically).
Since 1998, both Congress and the Sentencing Commission have reduced the penalties for distribution of crack cocaine. Because some of those reductions (the ones to the advisory Guidelines) have been made retroactive, Mr. Gay sought a sentence reduction under the applicable statute: 18 U.S.C. 3582(c)(2).
But Mr. Gay has a problem. Even the latest crack-cocaine reduction (Amendment 750) did not reduce his base offense level or his Guidelines range. So he was ineligible for a reduction, as the Tenth Circuit held earlier this week. So, what's the big deal? Why, exactly, is this a published decision?
Well, Mr. Gay thought his 22-year sentence violated the Fifth Amendment (due process) and the Eighth Amendment (cruel and unusual punishment). So the Court published a decision to make clear that it did not (we guess). Well, sort of. The Court actually held that a defendant cannot raise these types of claims in a 3582(c)(2) motion. They are better made on direct appeal or in a motion to vacate (28 U.S.C. 2255). That makes sense.
What makes less sense is that the Court then addressed the merits of these improperly-brought claims. The Eighth Amendment claim is simple in light of this case from the Supreme Court (rejecting an Eighth Amendment challenge to a life sentence for a smaller amount of crack cocaine). The Due Process claim focused on the continued disparity between crack cocaine and powder cocaine (now at 18:1). Had Mr. Gay distributed powder cocaine, his Guidelines range would have been 120 to 135 months imprisonment, well below the 22 years that he received. The Court was unimpressed in light of precedent and Congress's continued belief that crack cocaine should be punished more severely than powder cocaine. Typical stuff from an appellate court.
We take away three things from Gay: (1) if you are going to raise these types of issues, do it in the first instance (at the initial sentencing hearing); (2) expect to lose Constitutional arguments concerning the Guidelines' disparity between powder cocaine and crack cocaine; and (3) so, also frame the arguments as mitigating arguments for a lower sentence (i.e., a downward variance). The Supreme Court has said that district courts can vary based on the crack/powder disparity in any case, and district courts actually vary down for this reason. We continue to believe that a 1:1 ratio between powder and crack cocaine is the only reasonable ratio, and we think you should make the argument in all your crack cases that involve a ratio greater than 1:1. Here is one way to do it (it worked).
We end on a positive note for Mr. Gay: thanks to the just-enacted two-level, across-the-board retroactive reduction to the drug quantity Guidelines, he appears to be eligible for a reduced sentence under 3582(c)(2) come next November. Finally.  

Friday, November 14, 2014

Concurrent v. Coterminous Sentences

The Tenth Circuit published quite the decision this week in Brown v. Parker, a case involving a 42 U.S.C. 1983 action out of Oklahoma.
Mr. Brown (a former lawyer) had some legal problems in Tulsa and Muskogee. He dealt with Tulsa first and got a 2-year sentence. A month later, he wrapped up his legal problems in Muskogee, landing a 2-year sentence this time as well. But he also convinced the Muskogee judge to run his sentence concurrent to the Tulsa sentence. Now, Mr. Brown thought that this meant that the sentences would end at the same time. After all, when one serves two concurrent sentences, the sentences are served at the same time. Of course, Mr. Brown had a problem: the sentences started at different times. What the Tenth Circuit tells us he needed, then, was a coterminous sentence (a sentence that runs, and ends, at the same time as another sentence). If you've never heard of such a thing, you're not alone. (The Tenth Circuit cites Florida case law, and nothing else).
Nor would it necessarily be a good idea to ask for such a sentence the next time you are in federal court. The applicable federal statute, 18 U.S.C. 3584, talks about consecutive and concurrent sentences, but not coterminous sentences. But you could ask for a downward adjustment or downward departure under USSG 5G1.3. It appears to be the same thing. In other words, if you have a defendant who is currently serving a state sentence, a federal sentence imposed concurrent to that sentence simply means concurrent as of the date the federal sentence is imposed (and not earlier). To obtain a coterminous sentence (a sentence that ends on the same day as the state sentence), you'll need the judge to adjust the federal sentence downward, as illustrated in 5G1.3.
Back to Mr. Brown. It turns out that the Muskogee sentencing judge actually meant to impose a coterminous sentence, and the judge entered an amended order to that effect. The judge did not use the word coterminous (not even the State's brief on appeal uses the word coterminous.). He simply said: release Mr. Brown when the Tulsa sentence expires. But the department of corrections refused to do so. Hence the lawsuit.
Now, at this point, you might be thinking to yourself that Mr. Brown won the appeal. He needed a coterminous sentence, and that is what he got (eventually). Well, you're wrong. The Court, citing one case from the Alabama Court of Criminal Appeals, held that the sentencing judge lacked jurisdiction under Oklahoma law to impose a coterminous sentence.
That might not be correct. In Setser v. United States, a case ignored by the Court and the parties, the Supreme Court explained that judges have inherent discretion to impose sentences, and it refused to interpret section 3584 to restrict this discretion.   
Anyway, the Tenth Circuit actually dropped a footnote suggesting that the sentencing judge could have modified the sentence downward to effectuate a coterminous sentence. Although the Court did not make the connection, this modification procedure is analogous to 5G1.3 in the federal system.  
To bring this saga to an end, Mr. Brown ultimately served a little less than one year in prison (thanks to good time credits), not the two years imposed in either case. The concurrent v. coterminous debacle cost him around 90 days of freedom. That is 90 days lost because nobody understood the law at the time of sentencing.
For more on how state and federal sentences interact, go here (page 20). 

Thursday, November 13, 2014

Chevron Deference to Criminal Statutes? Maybe Not

Chevron deference: the legal principle that courts typically defer to an agency's interpretation of a statutory scheme that the agency is entrusted to administer. No doubt the doctrine applies to civil statutes. Chevron itself involved the Clean Air Act and EPA regulations interpreting the Act.
But what if the statute interpreted by an agency is a criminal statute? Should courts defer to agency interpretations then as well? The Tenth Circuit has said yes, relying on a Supreme Court decision from 1995. Three Justices dissented in that case, including Justices Scalia and Thomas.
Fast forward almost 20 years to this 3-page Statement, authored by Justice Scalia and joined by Justice Thomas, respecting the denial of certiorari in Whitman v. United States. This is a must read for criminal defense attorneys. This is how it begins: "A court owes no deference to the prosecution's interpretation of a criminal law. Criminal statutes 'are for the courts, not for the Government, to construe.'"
Indeed. Justice Scalia continues, stating the unexceptional proposition that legislatures, and not executive officers, define crimes. And, if that is so, then an executive agency has no business interpreting the reach of a criminal prohibition. It is difficult to argue with this logic. It is even more difficult to understand that this logic is not the law. A modern-day example of deference to an agency's interpretation of a criminal statute is the Sex Offender Registration and Notification Act (SORNA) and its application to pre-enactment offenders. SORNA, on its own, does not apply to pre-enactment offenders. But the Attorney General has said it does (and now he prosecutes pre-enactment offenders). In other words, the Attorney General has defined the crime, and now he enforces it. And courts are ok with this.
But, with Justice Scalia's Statement in Whitman, we know (or are reminded) that two Justices are not. The Statement is powerful stuff. If an executive agency has interpreted a criminal statute to allow the executive to prosecute your defendant, you should not be ok with that. And you should challenge it, knowing that you have two Justices on your side (if nothing else). That challenge could be based on the nondelegation doctrine, and/or, as Justice Scalia suggests, the Rule of Lenity (the statute itself being ambiguous, the rule of lenity would resolve that ambiguity in the defendant's favor). As always, contact us with questions.

Wednesday, November 12, 2014

Which Door Should an Officer Knock? SCOTUS Refuses to Give Us the Answer

Fourth Amendment jurisprudence includes a concept known as "knock and talk." The rule allows officers to approach a residence and knock on a door in order to talk with the residents (hopefully), just as any private citizen might. And officers can do this even if they are in search of evidence or otherwise investigating a crime. The "knock and talk" is not even a search, according to the Supreme Court.
At least when officers knock on the front door. Perhaps it is a search (of the home's curtilage), and an unreasonable one at that, when officers knock on some other door. That was the conclusion reached by the Third Circuit in a 1983 action just this year. But earlier this week, the Supreme Court, in a per curiam opinion, undid that decision, holding that this "front door" requirement was not "clearly established." The case is Carroll v. Carman. Because of the procedural posture of the case (whether officers were entitled to qualified immunity in a civil suit), the Court went no further than its "not clearly established" holding. It did not, for instance, hold that officers can, in fact, knock on some other door. The which-door-do-I-knock-on conundrum continues.
Sort of. In its decision, the Court notes that quite a few courts of appeals (and even a state supreme court) disagree with the Third Circuit and allow an officer to "knock and talk" on any door that is open to visitors (whatever that means). Although the Court did not cite to the Tenth Circuit, alas, it very well could have. Not all that long ago, the Tenth Circuit upheld a "knock and talk" at the back door of a residence where officers "used the normal route of access" to the door.
We take away two things from SCOTUS's ambivalent decision in Carroll: if you have a not-front-door "knock and talk," consider: (1) how the officer arrived at the door (was it via the "normal route" or some other route); and (2) whether the door was accessible to the public (or "open to visitors"). If either answer (or both) favors your client (not a normal route, or an inaccessible door), then move to suppress on that basis. If neither answer does you any good, consider preserving the legality of the "knock and talk" based on what might be a conflict in the Circuits on this issue.


Tuesday, November 11, 2014

How a Felony Becomes a Misdemeanor

One of the (few) good results from the November 4 elections was the passage of Prop 47 in California. This reduces some felonies to misdemeanors, including simple drug possession. According to the LA Times, "[t]he greatest effect, experts said, would be in drug possession cases, noting that California is now the first state in the nation to downgrade those cases from felonies to misdemeanors." Some of these felonies are known as wobblers, familiar from the 2003 SCOTUS decision in Ewing v. California, which allowed such convictions to support a three-strike sentence.

So . . . the connection between the California election and the federal client file laying on your desk? If your client has a California felony conviction, such as simple possession of methamphetamine, you may be able to change that felony to a misdemeanor. And while we don't know for certain how this will play out in federal court, it could benefit your client in several ways. 

But first, how to get this done. The law is retroactive but not automatic. A federal defendant with a qualifying California felony conviction can file an application with the California sentencing court to designate the felony as a misdemeanor. If it qualifies, relief appears to be non-discretionary. A pro se application should be available soon, as well as direction from the California courts on how to expedite the application process.

Now, why it needs to be done. Applying for a misdemeanor designation is imperative if the California felony subjects the defendant to a federal felon-in-possession charge; this could mean actual innocence. There may be a parallel argument for aggravated re-entry charges. Misdemeanor designation would also be required to get out from under mandatory statutory sentencing enhancements, such as the Armed Career Criminal Act or 851 drug penalties.

Redesignation as a misdemeanor is the optimal choice, and absolutely necessary in the above statutory scenarios. In the context of the advisory guidelines, though, a secondary option may be to request a below-guideline variance.  Argue for a lower sentence if the California felony is a predicate for 1) career offender, 2) a base-offense-level increase under the weapons guideline, 2K2.1, 3) a base-offense-level increase under the immigration guideline, 2L1.2, 4) if the defendant was previously deported based on a reducible felony, or 5) to off-set any argument for an upward variance based on excessive criminal history.

The flip-side of the last argument is a request for a below-guideline variance or downward departure (yes, there is still such a thing in the Tenth Circuit, 4A1.3(b)) because the criminal history category over-represents the seriousness of the defendant's criminal history or risk of recidivism. For example, misdemeanors usually carry a maximum of one-year, and therefore could not have received more than two points (4A1.1(a) and (b)); may have then timed-out under the ten-year cut-off (4A1.2(e)); or may be excluded under 4A1.2(c), based on the nature of the conviction, because the possible probationary term could not have been "more than one year." This may only work if the felony sentence was also probation.

We will post a link to a pro se application when it is available. 

Monday, November 10, 2014

And more on ACCA . . .

As a  follow-up on Dan's ACCA post last week, remember that some Kansas felony drug ACCA-supporting convictions  may no longer qualify after Brooks:

1) For a prior drug felony conviction to support an ACCA enhancement (statutory text after the jump), it had to have been subject to a ten-year or higher maximum sentence. That is, at the time the defendant was sentenced on the prior, the sentencing court could have imposed a ten-year sentence or more. If it falls short of that, it doesn't support an ACCA enhancement.

2) The maximum penalty that can be imposed on a Kansas drug felony conviction is based on the sentencing grid,  specifically the box or range of penalties that applied to the defendant. This is based on the Tenth Circuit's decision in U.S. v. Brooks.

 3) Looking at the Kansas state court judgment for the prior drug conviction, if the top of the penalty range is less than 120 months, the felony drug conviction does not count for ACCA. About half of the grid falls below 120 months.  

Then you are back to a ten-year ceiling instead of a 15-year floor.

And, as promised, Johnson v. US was argued at the Supreme Court last week, transcript here. The question is whether possession of a short-barreled shotgun is a violent felony. For one interesting take on the argument, go here. This is the fifth time in seven years that the Court has struggled with the term "violent felony" under ACCA, and this fuels the question of whether the Court will finally admit the statute is void for vagueness, as Scalia has argued.

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Sunday, November 9, 2014

Guidelines Errors Galore

Last week, two courts of appeals vacated sentences based on Guidelines errors. Here's why:

(1) United States v. Prange: from the First Circuit, but authored by Judge Baldock of the Tenth Circuit (and joined by Judges Kayatta and Selya)
This is a securities fraud case that went to trial. The Court affirmed the convictions, but found one error in the Guidelines calculations. That error centered on the loss calculations (USSG 2B1.1). The Court held that the district court erred because it did not offset the amount of loss by the value of the stocks purchased by the government (USSG 2B1.1, comment. 3(E)(I)). In doing so, the Court expressed frustration with the government's argument that the stocks were worthless. This case is a good reminder that loss amounts must be offset by the value of any property returned or services rendered.

(2) United States v. Brown: from the Ninth Circuit; written by Hurwitz (with Bea and Ikuta)
This case involves a Ponzi mail fraud scheme and bankruptcy fraud. Sentencing issues abound.
  1. The district court denied a USSG 5K1.1 motion (cooperation), and the Court affirmed the denial, holding that it is proper to deny such a motion if the court intends to vary upward based on aggravating circumstances. This case is a good reminder that a district court does not have to grant a government's 5K1.1 motion.
  2. The Court held that a two-level aggravating role increase (USSG 3B1.1(c)) was improper because the defendant did not control another participant in the scheme. This case thus stands for the proposition that an aggravating role increase is improper if the defendant did not control at least one other person.
  3. The Court also held that an increase under USSG 2B1.1(b)(15)(B)(iii) was improper. That Guideline provides for an increase if the defendant's actions threatened the solvency or financial security of at least 100 victims. The defendants conceded that there were over 100 victims, but convinced the Court that the government failed to establish that at least 100 of these victims became insolvent or financially insecure. The government only presented 27 victim impact statements. The district court "extrapolated" from these 27 to find at least 100 victims. The Ninth rejected such an approach, noting that nothing in the record suggested that these 27 victims were representative of the other victims. This is a great example of how burdens of proof matter; the government had the burden and, although it surely could have met its burden, it did not. Therefore, the increase was improper.
  4. The Court also held improper an increase under USSG 2B1.1(b)(2)(C). That increase applies if there are over 250 victims of the offense. But a victim is only a victim for this specific Guidelines increase if the victim sustained monetary loss and that loss is included in the loss calculations. So, while there were more than 250 victims, less than 250 of these victims suffered monetary loss that was included in the loss calculations. The increase was improper. An important reminder to know the definition of Guidelines terms like "victim" in all their applications.  

Saturday, November 8, 2014

Revocations, Recusals, RDAP, Retrials

Briefly, we give you three cases of interest decided within the last few weeks:

(1) United States v. Smith: from the Seventh Circuit. Written by Judge Posner (with Judges Rovner and Tinder)
Two things happen in this appeal: first, the Court affirms a 14-month sentence imposed on a revocation violation, where the underlying revocation was illegal drug use (marijuana). But, it does so reluctantly. The Court ponders the utility in sending a drug addict to prison, candidly admitting that it was not "happy with the decision." "We have our doubts that imprisonment is an appropriate treatment for a marijuana habit," says the Court. For those of us who handle revocations based on illegal drug use, this decision is a must read. And everyone should take 20 minutes to listen to the oral argument as well.
The second thing that happens in this case, and it might possibly be related to the first, is that the Court, on its own, notes a potential problem: the judge, former prosecutor Sarah Darrow, appears to have had something to do with Mr. Smith's prosecution. So, concerned that the judge should have recused herself, see 18 U.S.C. 455, the Court ordered briefing on the issue, perhaps reaching for a reason to vacate the sentence imposed in this case.

(2) Abbott v. BOP: from the Ninth Circuit: Written by Judge Gould (with Judges Wardlaw and Christen)
This appeal concerns the Bureau of Prisons' Residential Drug Abuse Treatment Program (RDAP). Aside from the obvious, RDAP is important because it is one of the only programs that, if completed successfully, could result in a shorter prison sentence for our clients. See 18 U.S.C. 3621. So the program is in high demand. And this decision is a great reminder that clients are not entitled to RDAP or to early release following RDAP. A few notes from the decision:
  • there are eligibility requirements for RDAP, which can be found here (and outstanding warrants could preclude eligibility);
  • certain inmates, even with successful completion of RDAP, are ineligible for early release (go here);
  • if the BOP concludes that an inmate is ineligible for early release based on its interpretation of the regulation, the inmate can challenge the BOP's determination by filing a federal habeas petition
  • as happened in this case, a federal court can determine that the BOP's interpretation is invalid (here, that a prior Montana unlawful restraint conviction was the equivalent of kidnaping)
  • and, if the inmate has already been released from prison, the remedy could be a shorter term of supervised release
Practically speaking, any attorney offering advice to a defendant on RDAP should have these regulations handy.

(3) United States v. Mavromatis: also from the Ninth:
This is a two-page Order. It holds that it is a double jeopardy violation to be tried for a violation of 18 U.S.C. 922(g) (the gun statute) following an acquittal on a different section of 922(g). So, as one example, and as happened in this case, if a judge (or jury) acquits an individual of being a felon in possession of a firearm, the government cannot then indict that individual for possessing a firearm after previously being committed to a mental institution. The government conceded error in light of a brief filed with the Supreme Court by the Solicitor General in 1992. Likely a surprise to the government that its concession ended in a published decision.    

Friday, November 7, 2014

Don't Expect a Perfect Trial; Just Hope for a Fair One

Unlike most criminal defendants in federal court, Joseph Farmer went to trial. Like most criminal defendants who go to trial in federal court, the jury convicted him. He appealed, raising three trial-related issues, and lost in a decision published this week.
The case involved a gun found in a vehicle following a traffic stop. Because Farmer was a felon, he could not possess the gun. He told the jury that it was not his gun and suggested that the cops planted it. There were a few problems to this story: (1) the gun was found under the driver's seat of his car, at a time when he was driving it; (2) when the officer was about to search in that general area, Farmer, seated in the squad car, honked the horn and yelled to the officer that the trunk might contain contraband; and (3) the squad car's video camera caught Farmer trying to convince the female passenger to "take the gun." Apparently thinking that the case was not as strong as it sounds, the government sought to introduce a 2010 gun conviction, under Rule 404(b), to show Farmer's knowledge of the gun in the car. And the district court allowed it over an unusual objection by the defendant. That objection sought to exclude the Rule 404(b) evidence because the seizure of the gun in the 2010 case violated the Fourth Amendment. The prosecutor also made some possibly-problematic comments during closing argument, telling the jurors that: (1) the officer had no reason to plant the gun or testify falsely; (2) when a defendant does not have the facts or the law on his side, he blames the cops; and (3) the defendant, who criticized the government for not doing fingerprint analysis on the gun, could have done his own fingerprint analysis.
The Court held that the district court erred on the Rule 404(b) issue when it determined that the defendant could not challenge the legality of the prior search and seizure. But then the Court found any error harmless in light of the substantial evidence against the defendant.
The Court also invoked harmless error on the closing argument issues. Sort of. But it also held that some of the comments were not improper (I think). This includes the prosecutor's "vouching" of the officer (see (1) above); those arguments were proper because of the defendant's claim that the officer planted the evidence. That makes sense.
The second set of comments -- no facts, no law, blame the cop -- were also not improper because they were "fair comment[s] on the evidence." At least not on plain error review. The Court does not exactly explain its conclusion on this one. I'm not sure I understand it. Let me know if you do.
The third set of comments -- the government's claim that the defendant could have tested the gun for fingerprints -- were actually held improper by the district court. But the district court refused to declare a mistrial because of them. The Tenth Circuit affirmed that finding, suggesting that the comments might not have even been improper. I'm not sure I understand that conclusion. The government, and not the defendant, has the burden of proof. The government's comments shifted the burden to the defendant. Right? In any event, the Court ultimately concluded that jury instructions on the government's burden and the presumption of innocence were enough to cure any error under an abuse of discretion standard.
Finally, the Court rejected a cumulative error argument, noting that, although the trial might not have been perfect, it was "a fair one."

Wednesday, November 5, 2014

Prosecutorial Discretion as an Oxymoron

Today the Supreme Court heard arguments in Yates v U.S., and the direction of the Court's questions shed some light on why they granted cert in a case about the size of fish. It has to do with government overreaching.

Facts: the fisherman had a bunch of too-little fish. The fish police told them to come to shore to answer for their icthyological crimes. The fisherman dumped the little fish and replaced them with bigger fish when they thought the fish police weren't looking. The government charged the fisherman with a destruction-of-evidence crime that carried up to 20 years, and asked for a two-year prison sentence. The court imposed a 30-day lock-up. 

The law was intended by Congress to target Enron-type corporate fraud, and did not necessarily contemplate red grouper catch-and-release. Judge Scalia's questions put the size of the fish in context, as reported by SCOTUSblog,

Scalia leaned forward and, accusingly, told [government lawyer] Martinez that he was defending the law and its use for someone who got only thirty days.  “What kind of sensible prosecutor does that?  Who do you have who exercises prosecutorial discretion? " [and]  "[W]hat kind of mad prosecutor” would use that law in a case like this one?  

It gets better.

Justice Ginsburg (Notorious RBG)interjected, asking whether the Justice Department provided any guidance, “any kind of manual” to limit prosecutors. 

There's more.

C.J. Roberts: "You make [Yates] sound like a mob boss."

And finally: "Justice Kennedy commented acidly that the Court perhaps should no longer refer to the concept of 'prosecutorial discretion' if it was open to use as in this case."

Lyle Denniston's entertaining SCOTUSblog review is here.

Tuesday, November 4, 2014

ACCA News: Today and Tomorrow

Today, the Tenth Circuit decided United States v. Titley, rejecting a creative equal protection challenge to the constitutionality of the Armed Career Criminal Act (ACCA). The Act, which punishes various gun offenses, increases penalties for those who have three prior qualifying convictions, including convictions for "serious drug offenses." The challenge in Titley centered on the definition of "serious drug offense." That definition only includes convictions, state or federal, that carry statutory maximum sentences of at least 10 years. But what happens when a state conviction that carries a 10-year statutory maximum sentence in that state would not carry a 10-year statutory maximum sentence in a different state? Stated differently, what if the defendant's prior offense conduct is only considered a "serious drug offense" because he committed it in State A, instead of State B? In Titley, the defendant established that his underlying offense conduct would not have carried a statutory maximum sentence of 10 years in 19 other states. So, does that matter?
No, says the 10th Circuit. The defendant conceded that rational basis was the proper standard of review. This is an obviously deferential standard, and the government met it in this case. The Court thought it rational for Congress to defer to the judgment of state lawmakers in the state where the offense was committed when defining the seriousness of an offense. The Court also cited prior precedent that supported its decision. So, a defendant who commits a crime in one state can be treated differently under the ACCA from a defendant who commits the identical crime in another state.

Tomorrow, the Supreme Court hears oral argument in Johnson v. United States.  The case involves the infamous residual clause and whether mere possession of a sawed-off shotgun qualifies as a violent felony. Now, if you are wondering how the mere possession of something can be considered violent conduct, you are not the only one. We will soon find out what the Justices think.
But there is another issue lurking in every case involving the residual clause: whether the clause itself is void for vagueness. This SCOTUSblog article explains the point. And it is a great reminder to raise this issue in every residual-clause case. We will even help you do it. I litigated this issue in the Seventh Circuit a few years ago and lost when the Court found that its "hands were tied." Here is the opening brief from that case. Use any of it.     

Monday, November 3, 2014

A Snitch in Time Saves Nine

Last week, in United States v. Baker, the Tenth Circuit held that a district court has no jurisdiction to rule on a substantial assistance motion filed more than one year after sentencing if the defendant provided information that was useful to the prosecution both before and after this one-year period. If this does not make sense to you, you are not alone. But let's talk practice first.
If your client provides substantial assistance, make sure that the government moves for a substantial assistance reduction at the time of sentencing. If the government is hesitant to do it because the cooperation is ongoing, continue the sentencing hearing until the cooperation is complete. If your client does not begin to cooperate until after sentencing, you might adopt the strategy suggested by the Tenth Circuit in Baker: have the government file the motion within one year of the sentencing hearing, but ask the district court to hold the motion in abeyance pending the completion of your client's cooperation. I'm concerned about this latter option because a district court could refuse to hold the motion in abeyance (this might sound like a ridiculous thing for a district court to do, but the facts of Baker suggest that it is possible; in Baker, the district court dismissed a substantial assistance motion made by the government, asking for a 6-month downward departure, because the client's information was too useful (both before and after the one-year post-sentencing deadline). I am guessing that I am not the only person who finds this decision unbelievable.). Or, have the government file a motion prior to the one-year cutoff, then another motion after the one-year cutoff.

On the decision itself, the Tenth Circuit is obviously wrong on this one. For one, the Supreme Court has repeatedly admonished courts not to label as jurisdictional similar emphatic time restrictions in rules of court. The Tenth Circuit ignored all of this precedent in favor of a 35-year-old Supreme Court decision that itself relied on the 54-year-old Supreme Court decision criticized by the Supreme Court as broadening the concept of jurisdiction beyond its breaking point.
For another, the Supreme Court recently held that a lower court cannot invoke a procedural timeliness bar when the government has refused to rely on it. That is this case. The government filed the motion; clearly, it had no intention of enforcing a procedural bar to thwart the success of its own motion.
Then there is Dolan v. United States, which holds that a district court has the power to order a restitution order beyond the 90-day deadline set forth in the federal Restitution statute. Dolan is relevant here because the government in Baker delayed filing the Rule 35(b) substantial assistance motion because it thought it might need Baker's testimony at a restitution hearing. So, a court can ignore a statutory 90-day deadline in order to impose restitution, but it cannot "ignore" a much more amorphous rule-based deadline to grant a substantial assistance departure tied to a delayed restitution hearing. That is too inconsistent to be correct.
But the frustration with the Tenth Circuit's decision in this case goes well beyond inconsistencies with Supreme Court decisions. Rule 35(b)'s language allows substantial assistance motions more than one year after sentencing where the defendant's assistance "involved" information provided prior to the one-year cutoff but became useful only after the one-year cutoff. Nothing in the language of this rule suggests that a substantial assistance motion is improper if the assistance "involved" other information as well. Consider this from a logical standpoint:
a court can grant a substantial assistance motion for information provided prior to the one-year cutoff;
a court can grant a substantial assistance motion for information provided after the one-year cutoff;
thus (multiple choice quiz here):
(1) a court can grant a substantial assistance motion for information provided both before and after the one-year cutoff; or
(2) a court cannot grant a substantial assistance motion for information provided both before and after the one-year cutoff.
The first answer must be correct (a court can do A; a court can do B; thus, a court can do both A and B), but the Tenth Circuit picked the second answer. It is not at all clear why. Congress could not have meant this result, especially when one considers that it was the government's delay, and not the defendant's, that apparently divested the district court of jurisdiction.
This is a mess. Perhaps the Supreme Court will fix it.