Tuesday, August 18, 2015


New Mexico offers a conditional discharge order -- plead guilty, successfully live down a probationary term, and the case is dismissed without any adjudication of guilt. Fail, and the conditional discharge is withdrawn and the court may impose a finding of guilt. N.M. Stat. Ann. § 31-20-13(A). Other states offer similar dispositions, including Texas (Tex.Code Crim. Proc. Ann., Art. 42.12, § 5 (Vernon 2006 Supp. Pamphlet)) and Oklahoma (22 Okl.St.Ann. § 991c).  

Back to New Mexico. Mr. Saiz was mid-probation after a discharge order when he was arrested for federal firearm charges. The issue in US v. Saiz is one of sentencing guidelines: Was he a prohibited person by reason of being "under indictment", which increases the offense level under USSG 2K2.1, or not? 

The 10th said yes. "The charges in an indictment are not extinguished upon the guilty plea or verdict. Instead, they remain in suspension until the defendant completes his term of probation. . . .  Saiz remained under indictment in New Mexico at the time he committed the federal firearms offenses at issue here because the charges were never dismissed." But the Court helpfully (well, not helpful to Mr. Saiz, but maybe to one of our clients) pointed out that Missouri has a similar suspension of adjudication, and that the Eighth Circuit has held that when a guilty plea is entered, as it is in both Missouri and New Mexico, the indictment's primary function is extinguished. The Tenth simply chose to disagree with the Eighth, adding to the circuit split.

This case is only about "prohibited person" as defined in USSG 2K2.1, and could extend to the weapons possession charge in 18 USC 922(n). But it does not address how these deferred dispositions count in criminal history. That is found in USSG 4A1.2(f), Diversionary Dispositions. Here is the key -- if the "judicial process" did not include a finding or admission of guilt, it (usually) does not count. But a judicial proceeding that includes a finding or admission of guilt, even without adjudication, does. 

Remember, it must be within a judicial proceeding; out-of-court agreements are not judicial proceedings, and presentation of a diversion or deferment to a court is not necessarily a judicial proceeding with a finding of guilt. For that reason, the common requirement of a factual stipulation should be confined to just that -- facts without any admission of legal guilt. 

As always, there are many shades from many different state and local statutes. Saiz' deferral probably counted in criminal history because there was a judicial finding of guilt, just no conviction. A Missouri deferred adjudication may not. Because of the many variations, though, the only way to know the answer in a particular case is research.  

-- Melody

Friday, August 14, 2015

Match it up

From David Freund -- 

In the last nine months, we have discussed conditions of supervised release several times (revisit the previous posts here.) Today the Tenth Circuit reminds us that it is important to read the Judgment in a Criminal Case, and compare it with the sentence pronounced from the bench, including the conditions of supervised release. Victor Hernandez was sentenced for a drug trafficking crime. In addition to a term of imprisonment, the court ordered Mr. Hernandez to serve four years supervised release. Because Mr. Hernandez was not a United States citizen, the district court imposed only one condition of supervised release:

[T]he only condition that I’m going to impose on you, sir, is that you not commit any other federal, state or local crimes because the chances are very high that you’ll be deported. If you then return illegally to the United States, that will be committing another crime; and in all probability, you’ll be brought back before a judge, and as I told you when you plead guilty, you could be sentenced to additional time in this case.
However, the written judgement included multiple other conditions of supervision, which directly conflicted with the sentence announced from the bench. Mr. Hernandez appealed, arguing the sentenced imposed in open court controlled over the conflicting written judgment. The government conceded error. The Tenth Circuit agreed with the parties and remanded the case to the district court with instructions to conform the written judgment to the sentence orally pronounced in court.

So, not only is it important to compare the written judgment to the sentence pronounced from the bench, you must do it in a timely manner. Federal Rule of Criminal Procedure 36 allows the court to correct clerical errors in a judgment. While Rule 36 allows the court to correct a clerical error at any time, what happens if the court refuses to correct the error? You are left with filing a notice of appeal (unless the plea agreement contained an appeal waiver), which must be filed  within 14 days of the entry of the judgement on the docket. See Federal Rule of Appellate Procedure 4(b). So make sure it all matches up.

Have a good weekend.

Thursday, August 13, 2015

The junior-varsity Congress[1] strikes back

[Questions about the post title should be directed to David Freund]

David: In Johnson v. United States, the Supreme Court found the residual clause of the Armed Career Criminal Act unconstitutionally vague. One issue not resolved by Johnson was whether the residual clause of the career offender guideline crime of violence definition (USSG § 4B1.2(a)(2)) would suffer the same fate. Melody previously pondered the fate of the residual clause of the career offender “crime of violence definition.” Last Friday, the United States Sentencing Commission proposed an emergency amendment to the guidelines definition of “crime of violence.” Rather than simply excising the residual clause, the proposed amendment actually expands the scope of the crime of violence definition. The proposed changes affect not only the career offender guideline, but also several guidelines that cross-reference to "crime of violence” such as 2K1.3 (explosives), 2K2.1 (firearms), and 2L1.2 (Illegal Reentry).

Melody: The proposed amendments replace the broad (read: vague, unconstitutionally so) residual clause in the §4B1.2 (a)(2) guideline with more enumerated offenses, but then broaden the scope of the offenses, open it to reckless conduct, and insert vague language within the enumerated crimes definitions. Consider burglary – as it stands, the guideline only includes burglary of a dwelling. The new guideline expands this to burglary of a structure, which will include businesses, garages, uninhabited houses, and so forth. This is not a helpful fix. Or a fix at all.

David: Several definitions of enumerated offenses in 4B1.2 Application Note 3 appear open to a vagueness challenge: 

3(B) “Voluntary manslaughter” is (i) the unlawful killing of a human being without malice, upon a sudden quarrel or heat of passion; or (ii) causing the death of a human being through actions intended to cause serious physical injury to another human being. 

3(C) “Kidnapping” “Kidnapping” is an offense that includes at least (i) an act of restraining, removing, or confining another; (ii) an unlawful means of accomplishing that act; and (iii) at least one or more of the following aggravating factors: (I) the offense was committed for a nefarious purpose; (II) the offense substantially interfered with the victim’s liberty; or (III) the offense exposed the victim to a substantial risk of bodily injury, sexual assault, or involuntary servitude.

3(F) “Robbery” is the misappropriation of property under circumstances involving immediate danger to the person of another.

Melody: We need to challenge the current language under §4B1.2 under Johnson, regardless of what happens with the Amendments. Remember Peughthe erroneous application of the discretionary guidelines has constitutional dimension. And under Peugh, if the unfortunate amendments pass, they would apply only to the offenses committed after the amendments. Meanwhile, we can continue to fight the current guideline residual clause under Johnson.

[1] See Mistretta v. United States, 488 U.S. 361,427 (1989), Scalia dissenting. 

Tuesday, August 11, 2015

Win: Vehicle Impoundment Violated the 4th Amendment

"After surveying Supreme Court and Tenth Circuit precedent as well as persuasive authority
from other circuits, we hold that when a vehicle is not impeding traffic or impairing public safety, impoundments are constitutional only if guided by both standardized criteria and a legitimate community-caretaking rationale. We conclude that the impoundment at issue in this case is unconstitutional for two reasons: it was not guided by standardized criteria, and was not justified by a legitimate community caretaking rationale. Under our holding, either failure alone would be sufficient to establish unconstitutionality." US v. Sanders, decided August 7, 2015.

Sanders won the suppression motion before the district court. The Government pursued an interlocutory appeal. Sanders won again.

Some factors the Court considered:

-- the car was parked in a parking lot;

-- Sanders had someone who could pick up the car;

-- police did not ask her to sign a waiver of liability form that would protect them if the car was damaged left where it was;

-- the department had a list of 21 reasons to impound a car, but neither a high crime neighborhood nor the likely target of property crimes were not reasons.

The case law review is helpful, as is the analysis. And the result. (Well done, AFPD Howard Pincus).

In litigating this issue, make sure to get the department policy/ rules/ guidance/ whatever-they-want-to-call-it that supposedly standardizes these situation. If they can't produce any, all the better, because then there is no standardized criteria. Also, ask for the impound documents, tow records, towing company inventory, and whether, as here, there is a waiver of liability form. Always, always, repeatedly ask for video. It is usually there.

And Brady -- that is, information exculpatory to the issue at hand -- should apply to suppression proceedings, although the issue is head-bangingly undecided in the Tenth Circuit. See US v. Lee Vang Lor, 706 F.3d 1252 (10th Cir. 2013).

Friday, August 7, 2015

New Circuit Split on Warrant Requirement for Obtaining Historic Cell-Site Data

On Wednesday, the Fourth Circuit held, in United States v. Graham, that "the government’s warrantless procurement of [cell-site location information] was an unreasonable search in violation of Appellants’ Fourth Amendment rights." But unfortunately for Mr. Graham and his co-defendant, the court also held that the good-faith exception applied to law enforcement's conduct and affirmed the convictions.

The Fourth Circuit's holding in Graham creates a clear circuit split with the Fifth and Eleventh Circuits on whether acquiring cell-site location records is a search. And according to a post by Orin Kerr (which I recommend), it also "it also appears to deepen an existing split between the Fifth and Third Circuits on whether the Stored Communications Act allows the government to choose whether to obtain an intermediate court order or a warrant for cell-site records."

This is an issue that the Supreme Court may be taking up soon. Last week, the ACLU filed a cert petition on this issue in case from the Eleventh Circuit. So it might be sooner rather than later that this issue gets there. In other words, it is definitely something that should be litigated. If you have a case where the government obtained historic cell-site location information without a warrant, you should be filing a motion to suppress and using the decision in Graham as persuasive authority.


Tuesday, August 4, 2015

How do you say "Anders" in Spanish?

From Laura Shaneyfelt --

If you are preparing an Anders brief for your non-English speaking client, the Tenth Circuit has a new procedure. The Court recently adopted a rule from the the Fifth Circuit (here) and the Second Circuit (here)Counsel must make reasonable efforts to contact the defendant in person, by telephone, or through written notice and explain in a language the defendant understands the substance of the Anders brief, the defendant’s right to oppose it, and that the likely outcome of the brief would be dismissal of the appeal.

 This was announced in United States v. Cervantes(No. 14-5053)(07/30/2015), where the Court directed defense counsel to comply with the rule and allowed 30 days for the defendant to submit any pro se pleadings.  Counsel submitted a declaration, telling the Court that, with the help of a court-certified interpreter, he had phoned the defendant, discussed the three topics the Court had enunciated, and told his client of the deadline to file a pro se response. That, the Court noted with appreciation, was in full compliance with its directive.

Prior to this announcement, counsel’s duties when filing an Anders brief were set out in 10th Cir. R. 46.4(B). Under that rule, counsel is required only to advise the court of the defendant’s current address and then the clerk is directed to send the defendant a copy of the brief, the motion to withdraw, and an affidavit for a Motion for Leave to Appeal in Forma Pauperis.

The new rule protects the due process rights for non-English speaking clients. The Second Circuit addressed the adequacy of providing notice which the defendant may not  be able to read. “Where a defense attorney knows that his client falls within the substantial population of those who cannot understand English, it is unreasonable for him to provide English-only notice to the client (who, if counsel has been appointed by the court, is also presumably indigent) of the client’s right.” United States v. Leyba, 379 F.3d 53 (2nd Cir. 2004). Translating the brief is not necessary, according to the court in Leyba

Presumably, the local rules will soon be changed to reflect this new rule set forth in Cervantes. The Court, though, is clearly not waiting for that to happen. Counsel should assure that these steps have been taken and that adequate, understandable notice has been provided to non-English speaking defendants. 

Monday, August 3, 2015

Furry Noses + Rubber Hoses = Borderline (But Legal) SearchFr

From Paige Nichols --

In United States v. Moore, the Tenth Circuit held that Jester the Drug-Sniffing Canine’s leap into a detainee’s car through an open window after giving an alert but not a final indication did not violate the Fourth Amendment. The alert alone was sufficient to provide probable cause, says the Court (as it has said before). The fact that Jester was wrong---there were no drugs in Mr. Moore's car---did not, apparently, play a role in the Court’s decision.

If you'd like a slightly more skeptical view on alerts and probable cause, check out the Seventh  Circuit’s opinion in United States v. Bentley. Mr. Bentley himself did not fare any better than did Mr. Moore, with the Seventh Circuit ultimately holding that an alert by “Lex” provided probable cause for a search of Bentley’s car. But the Court reached that conclusion with considerable reluctance. Lex, it seems, was “at the back of the pack” when it came to reliability. In the field, Lex’s alert rate was 93%, while his accuracy rate was 59.5%.  Why the gap between alerts and hits? Probably because Lex’s handler gives Lex a treat---a rubber hose stuffed with a sock!---every time he alerts. As the Seventh Circuit observed, “If Lex is motivated by the reward (behavior one would expect from any dog), he should alert every time. This giftee policy seems like a terrible way to promote accurate detection on the part of a service animal, lending credence to Bentley’s argument that Lex’s alert is more of a pretext for a search than an objective basis for probable cause.” That said, the Court ultimately decided that a 59.5% accuracy rate is good enough for probable cause. But the Court warned that “this should not be a race to the bottom, however. We hope and trust that the criminal justice establishment will work to improve the quality of training and the reliability of the animals they use, and we caution that a failure to do so can lead to suppression of evidence. We will look at all the circumstances in each case, as we must.”

Sunday, August 2, 2015

Pictures May Help, continued . . .

Kirk continues on the SAFE Act, in response to the National Association of Assistant United States Attorneys' "white paper" (prior post here) --

(NAAUSA in italics, Kirk not)

Myth Four: Federal mandatory minimum sentences are arbitrary; their reduction will result in greater fairness and do little to disturb public safety.

Fact: Slashing federal mandatory minimum sentences will undermine the ability of law enforcement officials to dismantle drug trafficking organizations.

Us: Because that’s exactly what happened after crack cocaine sentences were reduced in 2008 and 2011. The two prior retroactive reductions in crack cocaine sentences did not exactly devastate cooperation incentives for crack defendants. Also, your employer says you are completely wrong.

Myth Five: Minimum sentences for drug dealers should be reduced because drug sentences have a disparate impact on minorities.

Fact: High-level drug trafficking is not committed by any group that mirrors the nation’s demographics in terms of age, gender, or race and prosecutions can’t be expected to parallel those demographics.

Us: The “white paper” readily concedes that “young and middle-age minority males are convicted and incarcerated at a higher rate than their relative numbers in the general population. That said, there is no evidence that there is any racial, gender, or age bias in the enactment or enforcement by federal authorities of our nation’s drug laws.” Actually, there is. White people are more likely to sell drugs than black people. But white people are arrested and incarcerated at a much lower rate. 

Myth Six: Reducing the sentences for drug dealers will reduce our taxes.

Fact: It’s easier to quantify the costs of incarceration than the value of public safety.

Us: We aren’t even sure what this means. But the claim here is that we “risk rolling back the clock and elevating the crime rate once again by employing shorter sentencing periods for the most serious drug traffickers and career offenders.” Because long drug sentences depressed the crime rate? Well, no.

Also, recidivism rates for those who received reduced sentences under prior retroactive sentencing amendments were lower than those that did not. So shorter sentences don’t increase recidivism. 

Unsourced conventional wisdom has run its course. It is time to look at the evidence. Long drug sentences don’t benefit anyone. If the assertions of the NAAUSA are the best that the other side has to offer, the debate is over.

Saturday, August 1, 2015

A Second Bite at the Apple

From David -- 

A question sometimes raised by our clients is whether the United States may prosecute them for offenses for which they have already been convicted (or acquitted) in state court, or another federal district court. The short, but very unsatisfactory answer, is usually “yes.” While Congress has specifically prohibited subsequent federal prosecutions after a state prosecution in a limited number of statutes (see 18 U.S.C. §§ 659, 660, 2101, 2117, 15 U.S.C. § 80a-36, 49 U.S.C. § 80501)), the Dual Sovereign Doctrine otherwise does not prevent a subsequent federal prosecution.

The Tenth Circuit recently provided a succinct summary of why successive federal prosecutions are generally permissible in United States v. Roberto Miramontes Roman.

There are some limits on successive prosecutions provided by the Petite Policy (see Petite v. United States, 361 U.S. 529 (1960), which generally prohibits a federal prosecution for acts prosecuted in another court, absent compelling federal interests. The Supreme Court discussed the Petite policy in Rinaldi v. United States, 434 U.S. 22 (1977). The Department of Justice has repeatedly declared that the Petite policy does not confer any rights to a criminal defendant. See, United States Attorney’s Manual, Title 9, Section 9-2.031, available online here.

Unlike federal law, Kansas law generally prohibits a subsequent prosecution in state court if a person has already been prosecuted for the same crime, based on the same facts if there was a conviction or acquittal. The Kansas prohibition on successive prosecution is not without limits. See, K.S.A. § 21-5110 (formerly K.S.A. §21-3108 before the 2011 re-codification of the Kansas Criminal Code); and State v. Fillman, 43 Kan.App.2d 244 (2010).