Tuesday, March 31, 2015

Ankle Bracelets

In US v. Jones, way back in 2012, SCOTUS made a small step away from Luddite-land and toward some basic technological awareness. Jones  held that police tracking a police-installed GPS on a defendant's car was, in fact, a Fourth Amendment search.

Image result for image GPS ankle bracelet
Orwellian Fashion
On the same trajectory, in Grady v. North Carolinaper curiumthe Court held that "a State also conducts a search when it attaches a device to a person's body, without consent, for the purpose of tracking an individual's movement." That person, Torrey Dale Grady, was ordered to wear a GPS ankle bracelet because he is a recidivist sex offender. He argued this was a Fourth Amendment violation.

The state courts were rather dismissive of his complaint. In turn, the Supreme Court was rather critical of North Carolina's dismissive attitude toward the Fourth Amendment. The state was inattentive to criminal law, and analyzed this claim as civil matter beyond the reach of the Fourth Amendment. But the Supremes would have none of that: "The State’s program is plainly designed to obtain information. And since it does so by physically intruding on a subject’s body, it effects a Fourth Amendment search."

The Court stops there, though, and remands to North Carolina to determine whether the statutory monitoring system -- the court-ordered GPS bracelet -- was reasonable under the Fourth Amendment.

Monday, March 30, 2015

Pay Heed, All Who Enter: Beware of the Rules

The Tenth Circuit issued an opinion last week that should serve as a reminder to all attorneys who practice before it – follow the rules of the court. In Alejandre-Gallegos v. Holder, Case No. 14-9567 (March 26, 2015) (unpublished), the Tenth Circuit dismissed a petition for review from the Board of Immigration Appeals. In doing so, the court issued a “bench slap” to an appellate attorney in the case for failing to follow the appellate rules regarding briefing.

The court detailed counsel’s performance as follows:
Now before us, Mr. Alejandre-Gallegos seeks to undo this decision but his attorney fails to give us any grounds on which we might. Counsel suggests the BIA relied on improper evidence but doesn’t supply any citations to the record where it went wrong on the facts (despite Fed. R. App. P. 28(a)(8)(A)). He suggests that the BIA applied the wrong legal standards but doesn’t cite any legal authority that might remotely support his claim. He even spends pages discussing another criminal charge against his client irrelevant to the one on which the BIA relied. Neither are counsel’s shortcomings confined to such important things. His statement of related cases actually includes argument (in defiance of 10th Cir. R. 28.2(C)(1)). He does not “cite the precise reference in the record where [each of his issues] was raised and ruled on” (as required by 10th Cir. R. 28.2(C)(2)) and his statement of the case includes no record citations at all (as required by Fed. R. App. P. 28(a)(6)). His brief contains no “summary of the argument.” Fed. R. App. P. 28(a)(7). He hasn’t even bothered to “alphabetically arrange[]” his table of authorities. Fed. R. App. P. 28(a)(3)). We could go on.
The court then explained that it was required to dismiss the appeal. But then the court did go on:
We confess reluctance about having to proceed so summarily and about having to chastise a professional colleague in this way. Everyone makes mistakes, and surely judges no less than lawyers. But the shortcomings here don’t just suggest a mistake, a few, or even a thoroughgoing disinterest in the rules of procedure. They suggest a lack of competent representation. For all we know from counsel’s garbled submission before us, his client may have a good claim or at least an arguable one: we just cannot tell.
The court discussed previous filings of the attorney over the last decade and noted that this was not a one-time occurrence. In fact, the court explained that the attorney had been warned time and time again about following the appellate rules. 

The court concluded that “[a]t some point, this court has a duty to do more than observe, record, and warn. It has a duty to act.”  Thus, the court directed the Clerk to initiate disciplinary proceedings against the attorney, including possible suspension from practice in the Tenth Circuit and restitution. 

The moral of the story is obvious. Any attorney practicing in the Tenth Circuit (or any court for that matter) should fear and respect the rules of procedure. They are not suggestions. They are gospel. Use the briefing checklist provided by the court. The Circuit's court clerks are incredibly helpful if you call them. The Circuit's website even has a section for "new or infrequent filers." Look at the sample briefs located in the back of the Practitioner’s Guide. Look at the Appeals section of our website, Kansasfpd.orgAnd if this is too overwhelming, the smart decision is probably to withdraw from the appeal and turn the case over to someone who is more comfortable handling appeals. 

But don’t be afraid. The Rules of Appellate Procedure are no more complicated than the rules of any other court in which you practice. They are just less familiar. So study and learn the rules of procedure, and you won’t get called for a technical foul.

-- Carl Folsom

Sunday, March 29, 2015

Don’t forget the Marshals will pick up the tab

Practicing criminal law in federal court is not always about circuit splits, sentencing guidelines, or negotiating with prosecutors. Sometimes, you can help your client with simple things that are more important in the moment than complicated legal issues. Like getting to court.

When indigent defendants are released prior to trial and then go home, sometimes hundreds or thousands of miles away, getting to court for hearings can be emotionally and financially taxing. There is of course the option to have the clients waive routine appearances prior to the hearing. But it is important to remember that if a client needs or wants to appear for a hearing, but cannot pay for transportation to court, the Marshals will pick up the tab, at least one way.  

Under 18 U.S.C. § 4285, “when the interests of justice would be served thereby and the United States judge or magistrate judge is satisfied, after appropriate inquiry, that the defendant is financially unable to provide the necessary transportation to appear before the required court on his own, [the court may] direct the United States marshal to arrange for that person's means of noncustodial transportation or furnish the fare for such transportation to the place where his appearance is required, and in addition may direct the United States marshal to furnish that person with an amount of money for subsistence expenses to his destination, not to exceed the amount authorized as a per diem allowance for travel under section 5702(a) of title 5, United States Code.” A motion for transportation and subsistence fees must be filed, and an order granted based on this statute. Again, this is transportation to court, not back home, and getting subsistence can be a struggle. But it can be done, and is rather routine.

This won’t make the guidelines more reasonable or get rid of mandatory minimums, but it is one less thing the client has to worry about. And it helps assure that the client feels engaged in the process without stressing about how they are going to do one of the most basic things, showing up for court.
-- Carl Folsom

Thursday, March 19, 2015

Light Traffic

We all know by now that the definition of violent crime or crime of violence is a complete mess. That is why SCOTUS is contemplating whether the residual clause is void for vagueness in Johnson v. US; we talked about it here and here.

The label of a prior conviction doesn't always tell you much about whether it fits into a particular category. For example, "Trafficking in Methamphetamine 14 Grams or More" -- you'd think that was a drug trafficking offense. But not so.

In an illegal reentry case, US v. Sarabia-Martinez, the Fifth Circuit held that this prior Florida conviction was not a drug trafficking offense, and it was plain error (no objection below) to rely on it to increase the base offense level by 16 levels under USSG 2L1.2. The Florida statute allowed for a trafficking conviction just for knowingly possessing more than 14 grams of meth.  The state apparently infers trafficking from the amount --  14 grams or more -- but that inference is not an element.

The Guideline trafficking definition includes possession with intent to distribute, but the Florida statute covers mere possession of a certain amount, which is outside the Guideline definition. "Sentencing enhancements are defined by federal, not state, law, and a state’s 'bulk theory of intent' cannot displace the guidelines’ text."

An important point: the PSR cited the conviction and described the facts from the arrest report. This does not satisfy the categorical approach. “[A] district court is not permitted to rely on a PSR’s characterization of a defendant’s prior offense for enhancement purposes.” And it was plain error to do so.

This is why it is necessary to dig deep into any prior conviction used to increase a sentence, to get the underlying records of prior convictions, and to research the underlying statute that was in effect at the time of the conviction. Labels can be misleading.

Wednesday, March 18, 2015

Why Innocent People Plead Guilty

We know this happens. Our clients opt for a certain sentence of probation rather than risk years in prison if convicted at trial. They take a shorter term rather than the danger of double-digit mandatory minimum sentences, or even mandatory life in prison. Or even accept life in prison rather than the threat of the death penalty. That is how the Alford  plea came to be -- pleading guilty not by admitting guilt, but by agreeing that the prosecution has evidence that would likely persuade a judge or jury of thier guilt beyond a reasonable doubt. Guilty but innocent.

They will plead guilty when they are innocent because of how the system is stacked. These are hard decisions sometimes, or not -- it can be the responsible choice for some of our clients.

Judge Jed Rakoff delivers a lecture.
Judge Rakoff
Not everyone has been willing to acknowledge this very real fact of our justice system. But Judge Jed Rakoff, federal district judge for the SDNY, calls out the idea of a trial-based justice system as a "mirage":  "In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone. . . . The Supreme Court’s suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: it is much more like a 'contract of adhesion' in which one party can effectively force its will on the other party."

Judge Rakoff's article in the New York Review of Books, Why Innocent People Plead Guilty, reviews the history of trials and pleas, the almost exclusive power of the prosecutions, and the reasons that innocent people plead guilty. He proposes some partial solutions, but none that would eliminate the increasing guilty-but-innocent convictions. In real numbers, "How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. The size of that range suggests the imperfection of the data; but let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit."

Former federal district judge, D.Mass, now Harvard law professor, Nancy Gertner, endorsed Judge Rakoff's position, but holds that he does not go far enough: "Indeed, there were times during my seventeen-year tenure on the federal bench in Massachusetts that inquiring of a defendant as to the voluntariness of his guilty plea felt like a Kabuki ritual. 'Has anyone coerced you to plead guilty,' I would ask, and I felt like adding, 'like thumbscrews or waterboarding? Anything less than that—a threatened tripling of your sentence should you go to trial, for example—doesn’t count.' . . . It is true too, in view of such threats of long terms in prison, that there is a strong possibility that the innocent may plead guilty. It may well be a rational calculation, given the penalty of going to trial, for there is clearly such a penalty."

While it is encouraging that the judiciary acknowledges the true nature of plea bargaining, that does little to balance the day-to-day practice. One way, though, that we may be able to bring light to the issue is with our clients' criminal history. Prior convictions may have been the product of guilty-but- innocent plea bargaining. The rape charge that carried serious prison penalties was pled down to some lesser offense and probation. These convictions will still count in criminal history, may still elevate the penalties, but they can be placed in context in sentencing argument. Challenging the nature and circumstances of a prior conviction may have a place in variance arguments, a reason that the sentencing court should lessen, or even erase, the weight of the prior conviction in evaluating our client's history and characteristics. Judge Rakoff and Judge Gertner's open acknowledgement and criticism of the practice give ground to these challenges. Arguments based on judicial criticism of the inequities in, as Judge Gertner calls it, the "cruel misnomer of plea bargaining" may be used to turn those words into action, in the form of a more reasonable sentence for our clients.

Tuesday, March 17, 2015

Fifty Shades of Gray (not Grey)

"Words are slippery things," begins the First Circuit decision in US v. Gray, issued March 13, 2015. In particular, the word "malice" may be hard to grasp.

This is the Court's clever synopsis: "Former flight attendant Nancy Gray, convicted of providing false information regarding a bomb threat on an airplane, seeks to convince us that she was denied a fundamentally fair trial when her jury was instructed that malice meant 'evil purpose or improper motive.' Because we find that the district court's definition just won't fly, we vacate Gray's conviction and remand this case for a new trial."

The evidence at trial was that Ms. Gray wanted to retaliate against either American Airlines or the ground crew by writing "bomb on board" in the lavatory. The statute Gray was charged under did not define malice; the district court instructed the jury that malice could include acting with "improper motive." The Court's  discussion is more about statutory construction and how to define an undefined statutory term -- whether by common-law or Congressional intent or analogy to similar statutes -- than about the definition of the particular word  "malice." On landing, though, the Court found "improper motive" as outside the definition of malice, that the error was not harmless, and reversed.

-- Melody, with thanks to Paige Nichols

Friday, March 13, 2015

Every Point Matters

When someone is committed to serve a sentence with the Bureau of Prisons, their designation is, in part, dependent on their security level. There are five Bureau of Prisons security levels: Minimum, Low, Medium, High and Administrative. An inmate’s security level primarily depends on how many security points they receive in their designation and custody classification. 

Like golf, the higher the score the worse the result. Sometimes 1 point can be the difference between someone being designated to a USP (high security) and not an FCI (medium). For instance, for men, a security score of 16-23 point usually places an inmate in a medium security facility. But add 1 point, and that same inmate can find himself in a USP. (See Bureau of Prisons Program Statement P5100.08, Chapter 1, page 2).

There are several relatively simple things counsel can do to better a client’s score. First, a person receives 2 points if he/she does not have a high school diploma or GED. If the diploma or GED is not “verified” in the presentence report, the person gets the points. Early on in a case, counsel should determine when and where their client obtained a diploma or GED. Then, get your client to sign a release so you can get the proof to provide during the presentence investigation, should it be necessary.

If someone does not have a diploma or GED but is enrolled in or making satisfactory progress in a GED program, then only 1, rather than 2, points are added to their classification score. Counsel should help an out of custody clients without a diploma or GED, in finding, and enrolling in a GED program. Counsel should advise their in-custody clients to start a GED program if one is available where there are in pretrial detention.

Inmates without a verified high school diploma or GED have two additional problems. First, the Bureau of Prisons will require that almost everyone without a verified high school diploma or GED to enroll in an adult literacy program for a minimum of 240 hours. (See Bureau of Prisons Legal Resource Guide, pages 19-20). Second, failure to participate and make satisfactory progress in the adult literacy program can prevent an inmate from receiving the maximum allowable good time credit. See 18 U.S.C. 3624(b)(1).

Next, outstanding criminal cases, detainers, or warrants can increase a person’s security score. Depending on the nature of the outstanding case, this could add between 1 to 7 security points. (See Program Statement P5100.08, Chapter 4, page 11.) The Bureau of Prisons may treat arrests listed in the PSR with an “unknown” disposition as pending, unresolved cases. 

Of course, these arrests are usually listed as “unknown” because probation could find no filed case. While most would assume this means no case was filed, not so the Bureau of Prisons. When the PSR lists the results of an arrest as “unknown” first ask the probation officer writing the report to change it to “no case filed.” If they are unwilling to do so, submit a written objection and put the government to its burden of proving there was a case filed. Be sure to explain to the court in the objection why this matters, or risk the court relying on Fed. R. Crim. P. 32(i)(3)(B) to avoid resolving the issue.

For more information, see Bureau of Prisons Program Statement P5100.08. Also check out the FD.org page on the Bureau of Prisons.

-- David Freund

Thursday, March 12, 2015

In addition to reading this blog every day, there are several other very helpful web sites and blogs that anyone interested in federal criminal defense should read:

This site provides up to date information for Federal Defender and CJA Attorney Training Programs and information on Supreme Court cert grants, opinion analysis, and other relevant news. Outlines for select topics in federal criminal defense, and materials from past programs are available for review and download.

The name says it all. Summaries of pending cases, pending petitions for cert, and real time coverage by live blog when order lists and/or opinions are released
The premier sentencing resource on the internet, by Professor Douglas A. Berman.
The eponymous FourthAmendment.com blog by attorney John Wesley Hall summarizes significant opinions, articles and reports addressing the Fourth Amendment.

The Sentencing Commission’s web site includes not only the current and historical advisory sentencing guidelines, but Commission research and reports.

District Court opinions, memorandums and orders and other filings for civil and criminal cases. While not a complete listing of all opinions, this is a convenient way to keep up with what is happening in the Kansas City, Topeka and Wichita divisions of the Court.

PACER nationwide case locator (PACER account required)
Do you have a client or co-defendant with cases in more than one federal district? Don’t feel like individually searching the PACER site for every district to find this information? The PACER Case Locator is a national index for U.S. district, bankruptcy, and appellate courts. This system serves as a locator index for PACER. You may conduct nationwide searches to determine whether or not a party is involved in federal litigation in any district.

The Bureau of Prisons web site has a multitude of resources, including an inmate locator, where you can search by name or Bureau of Prisons register number. Once you locate an inmate, you follow the links to that facility, and access where he or she is housed and obtain visiting information, directions to the facility and other helpful information. The site also has a list and maps of Bureau of Prisons and contract facilities. Many policies and forms are also available for review and download.

-- David Freund

Wednesday, March 11, 2015

The Right to Jury Nullification

In State v. Smith-Parker, 340 P.3d 485 (Dec. 24, 2014), the Kansas Supreme Court recently held that the “beyond a reasonable doubt” jury instruction should leave room for jury nullification.  Of course, the concept of the beyond-a-reasonable-doubt standard is a federal constitutional issue, so the case presents a possible argument to make against the Tenth Circuit pattern instruction on the matter.

In reversing the defendant’s conviction, the Kansas Supreme Court agreed that a reasonable doubt instruction that told the jury that if it did not have a reasonable doubt, “you will enter a verdict of guilty” improperly stated the law.  The court held:

Although we have rejected a defense argument that a criminal jury should be instructed on its inherent power of nullification, the district judge’s instruction in this case went too far in the other direction. It essentially forbade the jury from exercising its power of nullification.  Both the wording of the instruction at issue in Lovelace—“must”—and the wording at issue here—“will”—fly too close to the sun of directing a verdict for the State. A judge cannot compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt.

Id. at 507. 

The Tenth Circuit instruction includes language that the Kansas Supreme Court rejected in Smith-Parker.  In relevant part, Tenth Circuit Pattern Instruction 1.05 states:

The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must find the defendant not guilty.

(Emphasis added).  Thus, a jury in federal court will not be advised of this (subtle) right to jury nullification that was so important to the Kansas Supreme Court.  So Smith-Parker can be used as persuasive authority that the Tenth Circuit pattern instruction is legally erroneous.

Although we often talk about “circuit splits” in federal court, this case presents a split of authority between a state court of last resort and the federal circuit court that oversees that state. And there are undoubtedly more differences of opinion on this issue.  It is also the type of fundamental issue that may interest the U.S. Supreme Court. 

  -- Carl Folsom 

Tuesday, March 10, 2015

No Soup for You

soup nazi photo: soup nazi soup.jpg

Last summer, Missouri finally rolled back a draconian law that targeted the poor. In the past, people with felony drug convictions were banned for life from receiving Supplemental Nutrition Assistance Program, also known as food stamps. A murder conviction or child sex offense on your record, that's not disqualifying. But not a drug felony -- no soup for you. Ever, not just for one year.

The new law still has restrictions. Less than three felony drug convictions. And the recipient must stay clean. But at least the lifetime ban is gone.

That is old news, sort of, but point here (I'm getting to it) is that often there are ramifications that go far beyond prison or supervision. Sometimes it is called invisible punishment. Employment, immigration, housing, food stamps, and much more. It is a long list. These consequences weigh much more heavily on the poor.

Padilla v. Kentucky tells us that we must inform our clients about the potential collateral consequences of a plea or sentence, such as deportation. But beyond the obvious fallout, it can be hard to identify or predict the effect of a felony conviction or incarceration. For example, it would have been good to know that pleading to a gun count rather than a drug count would save your client from a lifetime ban on food stamps.

To this end, the Collateral Consequences Resource Center has a blog dedicated to "Collateral Consequences of Criminal Conviction and Restoration of Rights: News, Commentary, and Tools." It is an excellent resource. This week, for example, the post noted that, "In a remarkable, unanimous decision, the California Supreme Court held on March 2, 2015 that residence restrictions for sex offenders on parole were unconstitutional as applied." Great decision, but it reminds us that we need to advise our clients convicted of sex offenses about the SORNA requirements and the other restrictions, such as residence and work. Punishment often lasts far beyond the prison term, especially for the poor.

-- Melody

Monday, March 9, 2015

Recommended Listening/ Reading

Amicus: The Letter of the LawDahlia Lithwick of Slate.com has a legal affairs podcast, Amicus, that is well worth listening to. There are twelve episodes so far, and she posts about every two weeks.  Her focus is generally on the the Supreme Court, and often her guests are the attorneys who argued before the Court or commentators such as Jeffrey Toobin.

Speaking of Jeffrey Toobin, The New Yorker has just put together a list of articles about the Supreme Court justices, some written by Toobin.
Ruth Bader Ginsberg's Dissent, Antonin Scalia's Supreme Confidence, John Roberts: No More Mr. Nice Guy and more. Happy listening/ reading.

Thursday, March 5, 2015


Opening statements were given in the Boston Marathon bombing trial yesterday. Dzhokhar Tsarnaev is facing the death penalty if convicted. And because conviction is all but certain, the end game is about the penalty.

Judy Clarke is Dzhokhar's lead defense attorney. Her 20-minute opening statement in the guilt/innocence phase is an eloquent lesson in credibility. From the NYT account,
“It was him,” the lawyer, Judy Clarke, said bluntly of her client, who sat slouched in a chair at the defense table. She added that Mr. Tsarnaev, 21, would not sidestep responsibility for his actions, which she described as “inexcusable.”
          * * * *
Ms. Clarke’s blunt, even surprising admission about her client’s actions seemed to be an effort to telegraph to the jurors that she would not waste their time with falsehoods, in part to earn their trust.
Making this strategic admission allowed the defense to lay the groundwork for the mitigation in second stage, primarily that he followed the extreme radical ideas of his deceased older brother. Clarke went so far as to ask the jurors to keep an open mind in second stage when considering the sentence.

Such restraint is difficult. This recalls the trial lawyer's adage that the best cross examination is, "No questions, Your Honor" (which is also what the Tsarnaev defense did for many of the government witnesses). It goes against our grain to quietly, or affirmatively, concede damaging facts.

Effective advocates know the end game and develop a strategy to get there. This means identifying the facts beyond change and building a credible defense that accommodates those facts. And that is what the Tsarnaev defense has done brilliantly.

Wednesday, March 4, 2015

Cert Grant: Conspiracy to Commit Extortion

Continuing with our series of cert grant reviews . . . .
From the Fourth Circuit, cert was granted on the following question,
Does a conspiracy to commit extortion require that the conspirators agree to obtain property from someone outside the conspiracy?
The premise is that the Hobbs Act statute defines extortion as "the obtaining of property from another, with his consent, . . . under color of official right.” 18 U.S.C. § 1951(b)(2). In Evans v. US, 504 US 255 (1992), the Supreme Court held that a public official violates that statute when he “obtain[s] a payment to which he was not entitled, knowing that the payment was made in return for official acts.”

There is a split between the Fourth and Sixth Circuits on the question. It does not appear that the Tenth Circuit has directly addressed this question.

The case is Ocasio v. United States and here is the SCOTUSblog page. Cert was just granted March 2 and no argument has yet been scheduled.

Tuesday, March 3, 2015

A Dunce Cap Should Complement That Snitch Jacket

From AFPD Tom Bartee:

The decision whether to appeal is ultimately the client’s. With a 4.32% reversal rate for criminal appeals in the Tenth Circuit, the decision to roll the appeal dice rarely yields benefits. But from the client’s perspective, what’s the harm? At least in the Third Circuit, a client’s decision to appeal in the face of an appeal waiver can backfire, as the defendant learned in United States v. Erwin.

Erwin entered into a plea agreement with an appeal waiver and an incorporated written cooperation agreement. Complying with the cooperation agreement, Erwin provided substantial assistance for which he received a 5-level reduction from the guideline range. Apparently dissatisfied, he appealed, raising three weak claims. After dispatching these, the Third Circuit considered the government’s argument that upholding the sentence wasn’t enough and that Erwin's appeal breached the agreement – according to the government, the Court should vacate the sentence so that the government would be made “whole” and to “deter other cooperating defendants from similar breaches.” That sounded like a good idea to the Third Circuit.

The court first decided that in light of fairly typical appeal waiver language, Erwin had “promised” not to appeal -- according to the Third Circuit, “common sense dictates” that there is no distinction between waiving a right and promising not to invoke it. The court next decided that breaking that promise constituted a “breach” of the plea agreement. The court didn’t carefully consider the broader implications of the rule that challenging a waiver constitutes the breach of a promise. Characterizing the plea agreement as “a classic bargained-for exchange,” (neo-classical economics explains criminal law so well, doesn’t it?) the court decreed that the defendant’s breach must be punished. It granted the government’s request for specific performance -- de novo resentencing with no obligation to file a §5K1.1 motion.

Erwin spawned an online law review article that discusses the dangers of incorporating cooperation provisions into plea agreements. Such agreements conjoin what should be independent – pleading guilty in exchange for, e.g., dismissal of counts, and receiving cooperation credit. Even though the cooperator provides the bargained-for substantial assistance and the government receives the benefit of that assistance, the defendant who appeals in the face of an appeal waiver entirely loses any benefit from cooperating. This punishment is hard to square with the claim that sentencing, including that of cooperators, should be controlled by the §3553(a) factors and the parsimony clause. The putatitve breach of an implied promise not to appeal hardly reflects that the defendant wasn’t entitled to that §5K1.1 reduction after all.

One more for the list of pitfalls found in standard plea agreements.
One additional thought [from Hansmeier]: read literally, under Erwin, the defendant dissatisfied with his sentence, and who entered into a plea agreement with an appeal waiver, need only file a notice of appeal to get a brand new resentencing hearing in front of a new judge. Considering that almost every plea agreement in Kansas contains an appeal waiver, whether or not the defendant actually benefits from the agreement, Erwin's logic might just work in a criminal defendant's favor. Of course, this assumes that a court of appeals would read Erwin for what it says, rather than for something else (or create an exception to negate this result).   

Sunday, March 1, 2015


Fish is usually both the singular and plural form of the word. The word "fishes", however, has acceptable uses. Some biblical translations refer to "loaves and fishes." Ichthyologists refer to multiple species as fishes.

And then, of course, there's The Godfather's Luca Brasi  who "sleeps with the fishes."

The Supreme Court examined the word "fish" last week in Yates v. United StatesWe first posted about Yates here. A fisherman was suspected of catching undersized fish, but before his school was seized, he converted his commercial enterprise into a catch-and-release program. He was prosecuted for destruction of evidence.

The issue was whether the fish were 'tangible objects' within the meaning of the Sarbanes-Oxley Act (affectionately known as SOX), the law that followed from Enron's mass document shredding.

Yes, fish are tangible objects. No, fish are not tangible objects as contemplated by SOX. This is a case about statutory interpretation, or of "matching construction" and fish did not match the statute's document destruction construct. Tangible objects "can be used to record or preserve information, not all physical objects in the world." The plurality reviews classic, Latin-laden principles of statutory construction, and ends with a nod to the rule of lenity.

Yates has an odd cast of votes. RBG wrote the plurality opinion, with Roberts, Breyer, and Sotomayor. That's four. Alito concurs by aggregating nouns, verbs, and titles. He has a point -- the title is "Destruction, alteration, or falsification of records in Federal investigations or bankruptcy." But Justice Kagan leads a rather sharp dissent, joined by Scalia, Kennedy, and Thomas.

And this is where we get back to fish plurals. Justice Kagan cites to "see generally, Dr. Suess, One Fish Two Fish Red Fish Blue Fish." Two Fish, not Two Fishes. (Dr. Suess's PhD was apparently not in ichthyology).

Not that this explains why she dissents. Justice Kagan cleaves to the simplest construct -- tangible object means just that, and the statute was intended to be encompassing rather than restrictive. The oral argument was soaked in questions about prosecutorial discretion in expending resources for this case, but that  reproach barely seeped though the written opinions. All criticism was directed at the opposing camps. Kagan, sounding more like Justice Scalia, shot that the statute's "meaning should not hinge on the odd game of Mad Libs the concurrence proposes."

But the dissent does finally hit on the real matter at hand: the "overcriminalization and excessive punishment in the U.S. Code." Justice Kagan finds her own voice again, admitting this is a bad law, "too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I'd go further: In those ways, [the statute] is unfortunately not an outlier, but an emblem of a deeper pathology in the criminal code." Then the ball -- or the fish -- is tossed back to Congress.  In the end, Justice Alito's dry, grammatical allegiance saves Yates.  

The Government's size obsession was on full display in this case. The Fish Police were on board and inspected the fish before they (the fish) were returned to their natural habitat. By law, the fish had to be at least 20 inches in length. (That was later lowered to 18 inches, but only after Yates' indictment). The Fish Police discovered 72 fish were shorter than 20 inches -- 69 were between 19 and 20 inches, and three were 18.75 inches. For that 1.25 inches, we get to the United States Supreme Court.