Friday, July 31, 2015

Pay attention

Opening paragraph of today's 10th Circuit's decision in U.S. v. Martinez-Torres
The most important thing at sentencing is determining whether the defendant will be incarcerated and, if so, for how long. Other matters, such as restitution and conditions of supervised release, are, appropriately, of secondary concern. But they are not inconsequential and deserve focused attention. Readily avoidable errors regarding these “secondary” matters appear too frequently on our docket. Particularly frustrating is that often the errors were not raised by defense counsel until the appeal. If the prosecutor, the defense attorney, and the district court would devote a bit more time at sentencing hearings to issues beyond incarceration, much time and effort will be saved in the long run. 
Judge Hartz doesn't stutter when he and the other two panel members, Judges Gorsuch and Moritz, take down current district court practices of imposing supervised release violations without justification. The Court lays much of the blame (where it may probably belong) on defense counsel for failing to even timely address these issues. The Court still vacated three supervised release requirements for psychosexual evaluation, prohibiting the use of alcohol or other intoxicants, and prohibiting the possession of sexually explicit material. The case was remanded for resentencing.

So pay attention to the proposed supervised release conditions in the PSR. Are they standard or special conditions? Do they meet the statutory requirements in 18 USC 3583(d)? Did the court make an individualized assessment? Then object. Rely on this case. 

One note: it seems that these sort of objections may offend probation and the courts because of the belief that our probation office, where ever you may be, would never overstep. Perhaps not. Certainly, there are outstanding probation offices who are reasonable and respectful. But the point is that your client may end up in another jurisdiction for supervision, and they may have a different philosophy about supervision. The only way to protect your client is to make sure it is done correctly in the first place, because you don't know who will be supervising or how the conditions will be enforced.

Wednesday, July 29, 2015

Pictures May Help

From Kirk -- 

The post is messy. We blame frustration.

The NAAUSA (National Association of Assistant United States Attorneys) just published a “white paper” on the internet. Over the course of fourteen pages and twenty-three footnotes (wow), the NAAUSA mounts a tepid defense of the federal drug war. Six “MYTH” debunkings are identified. We decapitalize “myth” because it would be annoying if we didn’t. 

In 2015, it seems uncouth to just say things without evidence. We proceed in order.

(The italicized language is from NAAUSA).

Myth One: Our prison population is exploding because of the incarceration of recreational drug users or low-level drug offenders.

Fact: Our federal prison population is not exploding, and those who are serving prison sentences for drug crimes are incarcerated because of drug trafficking crimes, not recreational drug use.

Us: Have you read anyone who claims that the federal prison population is driven by recreational drug use? Right. But also . . . 

Myth Two: The federal prison population is a product of mandatory minimum sentences for drug traffickers.

Fact: The majority of drug traffickers sentenced in federal court are not being sentenced pursuant to mandatory minimum sentences.

Us: The federal prison population is driven by drug sentences. The fact that the guidelines are explicitly linked to mandatory minimums seems relevant. Drug dealers are only 33% of the people sentenced to federal prison, and 50% of the people who reside there. Because of the really long sentences for drug offenses.

Myth Three: Only violent drug dealers deserve lengthy prison sentences.

Fact: It is well-established that drug trafficking is inherently violent and that all drug dealing is dangerous, taking the lives of thousands of Americans, destroying families, and undermining the moral fabric of our communities, regardless of whether any individual offender engages in an act of violence during the commission of a drug offense. 

Us: The “white paper” continues with the claim that it “is well-established that drug trafficking is inherently violent... violent acts aren’t pretty: they range from beheadings to drive-by shootings” But
that’s not right.

                -- Drug sentences were increased for,
                     --- 16.3% of offenders because the offense involved the possession of a weapon.

And that’s just weapon possession. Not actual violence. To be fair, there are no enhancement statistics for beheadings. Maybe there is a beheading epidemic that the guidelines miss. But it seems relevant that 83% of federal drug offenders didn’t possess any kind of weapon, presumably including machetes. Our point is not that drugs are good for society. It is rather that long drug sentences don’t reduce drug dealing. Drug sentences continue to skyrocket, but price and purity remain unaffected.

More tomorrow . . . .

Tuesday, July 28, 2015

Ethics and Conflict Among Clients

From Tom Bartee -- 

The culture of “substantial assistance” in federal court often generates ethical dilemmas. In Legal Ethics Opinion 1882, ConflictBetween Criminal Clients When One Client Desires to Testify Against the Other, the Standing Committee on Legal Ethics of the Virginia State Bar provides helpful guidance that is well worth reading and saving for when these issues arise.

The ethics opinion recognizes that these situations implicate at least three of the Rules of Professional Conduct: 1.4 (“Communication”); 1.7 (the Kansas Rule ofProfessional Conduct 1.7 title is “Conflict of Interest: Current Clients”; the Virginia counterpart, “Conflict of Interest: General Rule”); and 1.9 (KRPCtitle, “Duties to Former Clients”; Virginia, “Conflict of Interest: Former Client”) (although the text of the Kansas and Virginia versions of the Rules vary somewhat, these variations don’t seem to undermine the helpfulness of this ethics opinion for Kansas practitioners).

The opinion concludes that if Client A (hereinafter “Snitcher”) tells the lawyer that he would like to cooperate against Client B (hereinafter “Snitchee”) in the very case in which the lawyer represents Snitchee, the lawyer must withdraw from both clients’ cases. The lawyer must withdraw from Snitcher’s case because assisting Snitcher would be directly adverse to the interests of Snitchee, a current client. And the lawyer must withdraw from Snitchee’s case because the lawyer’s duty of confidentiality prevents her from revealing Snitcher’s intent to cooperate to Snitchee, thus violating the lawyer’s duty to communicate with Snitchee. Waiver of the conflict through informed consent is impossible because the duty of confidentiality bars the lawyer from disclosing the information to both clients in order to obtain such consent -- the old chicken-and-egg problem.

The opinion also rules out the hot-potato(e)[1] strategy – ditching one client to continue to represent the other. Both the Kansas and Virginia versions of the comment to Rule 1.7 refer the lawyer to Rule 1.9, which governs duties to former clients in conflict situations. The lawyer can’t retain Snitchee because under the rule protecting client confidences the lawyer can’t disclose Snitcher’s intention to Snitchee, nor could she effectively and without inhibition cross-examine Snitcher. And she can’t retain Snitcher while ditching Snitchee because the Snitcher’s information relates to the very matter in which the lawyer represented Snitchee; Rule 1.9(a) on former clients bars the lawyer from representing a client with interests adverse to a former client in the same or substantially related matter as the representation of the former client.

The opinion recognizes that the analysis might differ if Snitcher’s information is completely unrelated to the matter in which the lawyer represents Snitchee, and the lawyer withdraws from Snitchee’s case. But if the lawyer received any information from Snitchee during the representation that would be relevant to the representation of Snitcher, the lawyer’s duty of confidentiality to Snitchee might impair the lawyer’s ability to represent Snitcher. Thus, a conflict may exist notwithstanding the different subject matter of the representation.

The opinion also concludes that in resolving these issues, it is irrelevant that the prosecutor claims to be uninterested in  Snitcher’s information. The two clients’ interests are adverse, and despite the prosecutor’s expression of a lack of interest, the lawyer owes Snitcher the duty to keep trying to use the information, and that continuing duty creates a disabling conflict of interest.

[1] An allusion to Dan Quayle. For lovers of poultry, we now have references to: (1) chickens; (2) eggs; and (3) Quayle. Add a starch like potatoes (¶4) to any of these proteins and you have two-thirds of a tasty, well-balanced meal. Mmmmm.

Monday, July 27, 2015


From Paige Nichols -- 

Probation Condition Aimed at Reducing Out-of-Wedlock Children is Itself Illegitimate

Thought you'd heard it all when it comes to supervised-release conditions? In United States v. Harrisa district court judge in Kansas City, Missouri, sua sponte ordered the defendant not to engage in unprotected sex without probation's approval. Was Harris a sex case? Not even close. It was a gun case. But the judge heard that Mr. Harris had fathered ten "illegitimate" children with seven different women, and he wanted to fix what he saw as a "serious social problem." The Eighth Circuit vacated the condition, finding it unrelated to Mr. Harris's gun crime, unrelated to deterrence from future criminal conduct, and unrelated to Harris's correctional treatment.

Friday, July 24, 2015

SAFE Justice Act Progress and Dorsey

From Kirk --

Editorials in support are here, here, here, here, here, and here. Reform calls range from the Koch Brothers to the ACLU.

If you have a client charged with drug offenses, you should pump the brakes before she or he gets sentenced. Despite the anti-empirical position of the National Association of Assistant United States Attorneys, the bill seems likely to pass in some form.

So, Dorsey. There, the Court applied the Fair Sentencing Act to conduct predating the Act (but not the sentencing hearing) for six reasons. All would apply to the language of the this bill. 

The third and fourth reasons compel Dorsey’s result under the proposed legislation. Dorsey recognized that the Fair Sentencing Act “implies that Congress intended to follow the Sentencing Reform Act background principle” because the Act required the USSC to issue conforming amendments. The SAFE Justice Act goes a large step further and requires retroactive application of its provisions.

Dorsey’s fourth rationale was to avoid sentencing disparities between those sentenced under the old law and the new. Well…that seems an apt comparison for a total overhaul of federal drug laws.

In sum, Dorsey was a much closer case than we would have if the SAFE Justice Act passes to apply its terms to pre-sentencing defendants. To be SAFE (ha), wait until the bill is decided before proceeding to sentencing.

Wednesday, July 22, 2015

The SAFE Act and Mandatory Minimums

From Kirk, still on the SAFE Act,

So, the ten-to-life mandatory minimum penalties for drug offenses (841(b)(1)(A)) would apply only if the client was an organizer or leader of a drug trafficking organization with five or more participants. Meaning that if your client is not an organizer or leader, no mandatory minimum would apply.

And the (b)(1)(B) mandatory minimum penalties (5-40) only apply if your client was an “organizer, leader, manager or supervisor.”

These terms do not mean what you think they mean (said Inigo Montoyo). The Act provides new definitions, narrower than the current Sentencing Guidelines. A long but helpful block quote follows.

(2) The term “organizer” or “leader” is a person who, over a significant period of time—
(A) exercised primary decisionmaking authority over the most significant aspects of the criminal activity;
(B) engaged in significant planning of the acquisition or distribution of large quantities of drugs or sums of money for the initiation and commission of the offense;
(C) recruited and paid accomplices;
(D) delegated tasks to other participants on a regular basis;
(E) received a significantly larger share of the proceeds of the crime than other participants; and
(F) exercised supervisory control or authority over at least four other participants who meet the definition of “manager” or “supervisor” in subsection (d)(3) over a substantial period of time.
(3) The term “manager” or “supervisor” is a person who, over a significant period of time—
(A) exercised some decisionmaking authority over significant aspects of the criminal activity;
(B) received a larger share of the proceeds of the crime than most other participants; and
(C) provided ongoing, day-to-day supervision of, or specialized training to, at least four other participants over a substantial period of time.

Please note the “and” between the subsections. All of the requirements must be fulfilled before a mandatory minimum applies.

Also, we aren’t done with the impact of the Act on mandatory minimums. More tomorrow.

Monday, July 20, 2015

"Probation Generally Available"

Also from Kirk --


The SAFE Justice Reinvestment Act of 2015 is quite the thing. We will cover separate parts in separate posts. But the Act hits the reset button on the federal criminal justice system. Boehner endorses it. So does Obama. So does the Police Foundation. Speculation is that the bill will pass. It has “more momentum that anyone realizes.”

Let’s start with Section 302 of the Act. Subsection (a)(1) begins with the words “Probation Generally Available”. It really does. Here is the language.

(a) In General.—
“(1) PROBATION GENERALLY AVAILABLE.—Except as provided in paragraph (2), a defendant who has been found guilty of an offense may be sentenced to probation.
“(2) GENERAL EXCEPTIONS.—A defendant may not be sentenced to probation if—
“(A) the offense is a Class A or Class B felony and the defendant is an individual;
“(B) the offense is an offense for which probation has been expressly precluded; or
“(C) the defendant is sentenced at the same time to a term of imprisonment for the same or a different offense that is not a petty offense.
“(3) PRESUMPTION OF PROBATION FOR CERTAIN OFFENDERS.—The court shall sentence an otherwise eligible defendant to probation, if the defendant is a first-time Federal offender whose place of residence allows for Federal probation supervision and who did not engage in violent conduct as a part of the offense, unless the court, having considered the nature and circumstances of the offense and the history and characteristics of the defendant, finds on the record that a term of probation would not be appropriate. However, a defendant convicted of a Federal sex offense, as described in section 111 of the Sex Offender Registration and Notification Act, is not subject to a presumption of probation under this paragraph.”

Probation. Okay, then.

Sunday, July 19, 2015

SAFE Justice Act: Things are Getting Weird

From Kirk -- 

Well, hello. James Sensenbrenner (R-WI) is (really) a co-sponsor of a criminal justice reform bill. Here is what it says:

1. The Attorney General should consider measures to reduce pretrial detention.

2. Acquitted conduct should not be considered at sentencing.

3. Relevant conduct should be limited to conduct intended and in furtherance of conduct undertaken by the defendant.

4. DNA evidence should be preserved.

5. Video and audio recording of defendant statements should happen.

6. Informant testimony is “inherently suspect”.

7. Defense counsel must be permitted to inspect “and to copy or photograph the full contents of all investigative and case files” within 14 days of a request.

8. A presumption of probation (yes, probation) if “if the defendant is a first-time Federal  offender whose place of residence allows for Federal probation supervision and who did  not engage in violent conduct as a part of the offense, unless the court, having  considered the nature and circumstances of the offense and the history and characteristics of the defendant, finds on the record that a term of probation would not be appropriate.” I don’t know what this means, exactly.

9. Limiting mandatory minimums to situations where the “defendant was an organizer, leader, manager, or supervisor of a drug trafficking organization of five or more participants.”


1. Truncating the time limits for 851-eligible penalties. The predicate has to have occurred in the last ten years, excluding periods while incarcerated.

2. These changes are retroactive for crack offenses.

3. And the whole freaking thing may be retroactive upon certain proof, the content of which is unclear.

4. Compassionate release should be expanded.

5. Good time expands to 33% except for terrorism, homicide, and sex offenses (excluding prisoners who are serving a sentence. of less than one month, because that happens).

6. A system of graduated sanctions for supervised release violations should be implemented. 

Good grief. There is a lot more in this bill.  Which seems likely to pass. Read the whole bill. See what you think. Advise your clients accordingly.

Things are getting weird. Actually, things are getting a lot less weird. We will discuss the Dorsey implications in a future post.

Wednesday, July 15, 2015

Hercules and the Umpire


Judge Richard Kopf shut down his blog. We will miss him. Even with the scabies. Actually, especially with the scabies. He did an honest, unprecedented thing. As the Red Sox owner said (at least in the movie version), the first guy through the wall always gets bloody.

If Judge Kopf has a recommendation as to what else we should read at 5:20 in the morning, please let us know.

-- Kirk