Friday, December 30, 2016

So you wanted some statistics on Federal supervision . . .

Just this month the DOJ Office of Justice Programs Bureau of Justice Statistics (quite a name!) released their Bulletin on probation and parole in the United States for 2015. This little 25 page report is chock full of numbers. A few interesting statistics from the report:

  1. Of the 21,020 people who were on probation in Kansas, 15,502 completed the probation.
  2. Over 4.5 million people were on supervision at the end of 2015, a slight decrease from the end of 2014.
  3. While it is good to hear that the total number of people on supervision is down (even a little) that reduction is from less people being on probation (avoiding going to prison) and more people being on parole type supervision (after already going to prison).

Monday, December 26, 2016

Yes, Virginia, there is such a thing as a no-empirical-basis-based downward variance

A couple of months ago, we blogged about United States v. Godinez-Perez, in which the Tenth Circuit reversed a drug-conspiracy sentence on grounds that the district court failed to make particularized drug-quantity findings.

That holding still stands, but another part of Godinez-Perez has been revised in an important way.

Astute readers may have noticed that near the end of the opinion, the Court held that the absence of an empirical basis for the methamphetamine guidelines "does not constitute a valid basis for a downward variance." This may have surprised those of you who have argued for and even won various variances on a similar no-empirical-basis basis in drug and pornography cases. And it may have worried those of you planning to seek similar variances in the future.

Worry no more. The Tenth Circuit removed the anti-variance language from the opinion last week, granting Mr. Godinez-Perez's motion for rehearing on that score.

Darth Vader Chok - I find your lack of empirical evidence Disturbing

Thursday, December 22, 2016

Jurors ask the darndest things...

While many of us as lawyers would love to know what questions are going through a jury's mind during trial, it is a totally different issue to whether we want those questions ACTUALLY ASKED to a witness during a trial. And while (as usual) appellate courts leave such decisions in the sound discretion of the district court, well, c'mon.

Earlier this week, in United States v. Tavares, the First Circuit reversed convictions for a number of defendants in a RICO prosecution who were high ranking officials in the Massachussetts probation department. The reversal was partially based on a district court allowing the jurors to propose 281 questions, of which 180 were actually asked - an amount "far beyond anything approved of in this Circuit." The district court seemingly provided no limit to what could be asked, instead telling the jury to be guided by whether "the lawyer gets out what interests you from the witness." And the jury did just that asking, for example "why did you change James Rush's score?"

If you are interested in the 10th Circuit's take on this topic, check out United States v. Smith, 569 F.3d 1209 (10th Cir. 2009). There the jury  (through the judge) asked four questions where the lawyers from each side were allowed to follow up. The 10th determined that the questioning "presents some dangers, we do not find those dangers realized in this case." The 10th pointed to the limited number of questions and that there wasn't a "steady stream" of questions asked by the jury that would question their neutral role in the process.

As counsel did in each of these cases, remember to object to any questions and, ask for a mistrial to preserve the issue down the road.

Tuesday, December 20, 2016

New Pretrial and Criminal Case Management Order

There’s a new Pretrial and Criminal Case Management Order in town, to be used in all District of Kansas cases without a pretrial order entered on or before January 2, 2017. You’ll want to read the order carefully and discuss it with anyone who helps you calendar deadlines or schedule events. Below are some highlights (but this is not a substitute for reading the Order).

Counsel must consult before the status conference about a number of issues regarding discovery, pretrial motions, and plea negotiations. At the status conference, counsel must present any discovery problems to the Court and be ready to ask for a plea date or propose a pretrial/trial schedule.

Most deadlines are now keyed to the date of arraignment (rather than the trial date).

Discovery is supposed to be provided to the defense, when available, within 30 days of arraignment.

A number of specific items must be produced (without being requested by the defense), including any statements of the client, the client's criminal record, unredacted witness statements with contact information for the witness, expert testimony summaries, and Rule 404(b) evidence.

If the AUSA invokes Jencks (thus refusing to provide witness statements during discovery) the witness statements must be provided at least three days before trial. (The court notes that invocation of Jencks ought to be rare and is subject to an internal agreement that the local U.S. Attorney or Criminal Chief must approve any invocation of Jencks.) The Order specifies that Brady and Giglio trump Jencks and, if information qualifies as Brady/Giglio and Jencks, it must be provided in the normal course of discovery--not held back under Jencks.

Witness statements (see 18 USC 3500 for the definition) must not be given to the defendant or others not affiliated with defense counsel, unless an agreement is reached between the party or there is a court order.

Unless the defense has opted out of receiving discovery (and provided notice of that decision to the AUSA), reciprocal discovery must be disclosed by the defense within 14 days after the government provides discovery.

ESI must be accessible, searchable, and organized. It must be in .pdf, .tiff, or native file formats and any information necessary to access the material must be provided with the discovery.

Any motion to extend the 70-day Speedy Trial Act and to exclude time under ends-of-justice must be filed jointly. The motion will be closely scrutinized and must include very specific information that is listed in the Order. Any motion to designate the case as complex must also include details.

A number of panel attorneys and the FPD office worked, for more than a year, with the Court and U.S. Attorney's Office to craft this Order. It is hoped that it will expedite the discovery process and result in earlier and more thorough production of documents and information.

Thursday, December 15, 2016

SCOTUS to consider Brady issue this term

The Supreme Court recently added a few cases to the docket for this term. Two of these cases (co-defendants from a 1984 D.C. murder conviction) have Brady implications. We all know that Brady requires the prosecution to, at a minimum, turn over exculpatory evidence that is material to the question of guilt or punishment. Failure to disclose such evidence is a due process violation.

The question asked in  Turner and Overton is:

Whether, consistent with this Court’s Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government’s case in order to establish that the evidence is material.

In these cases, a reporter discovered (years later) that the prosecution failed to turn over some important sounding evidence to the defense. Examples of the withheld evidence (according to the brief of the defendants) includes statements from witnesses who claimed another person committed the crime, and witnesses who claimed another person was acting odd at the crime scene and fled when police arrived (and that person was involved in assaults in the area), and evidence that one witness against the defendants had convinced another witness to lie.

This strong evidence was not enough for the district court. The district court required the defendants to show the new evidence could have rebutted the government's entire case against them. Using that high standard, the distrct court held that the trial was not fundamentally unfair. The issue is even more important here, as apparantely the prosecution had conceded that the case "easily could have gone the other way." The jury had also been deadlocked repeatedly before finding guilt.

The case thus seems to turn on the interpretation of "had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). Looks like we will find out how far that requirement goes this term.

Tuesday, December 13, 2016

Fourth Amendment and Miranda Still Alive and Kicking

If you're in need of a little mid-week constitutional pick-me-up, we've got just the cases for you.

Last week, in United States v. Williams, the Ninth Circuit affirmed a district court suppression order, holding that when a defendant charged with murder invokes his Miranda rights, the government may not admit in its case-in-chief evidence of the defendant’s later unadmonished responses to a jailer's booking questions about his gang affiliation.

Also last week, in United States v. Abernathy, the Sixth Circuit reversed a district court order denying suppression, holding that a trash hit yielding "several marijuana roaches" and T-2 laced packaging material was insufficient standing alone to provide probable cause for a search warrant. (The affidavit originally contained additional corroborating allegations, but those were stricken as violating Franks. Given this Franks violation, the Sixth Circuit refused to apply Leon's good-faith exception to excuse execution of the bad warrant.)

Now, then, doesn't that make you feel better?

Sunday, December 11, 2016

Cert grant: Criminal Forfieture

Last Friday, the Supreme Court granted cert on a criminal forfeiture question:
Does 21 U.S.C. § 853(a)(1) mandate joint and several liability
among co-conspirators for forfeiture of the reasonably foreseeable
proceeds of a drug conspiracy?  
The statute provides that a person convicted of violating a federal drug law must forfeit to the government “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation.” Honeycutt v. United States presents a circuit split:  must the proceeds actually reach the defendant to incur joint and several liability?

Honeycutt worked in his brother's hardware store, and the store sold iodine water filters that could assist, if used in certain ways, in manufacturing methamphetamine. Convicted of a drug conspiracy at trial, Honeycutt was tagged with $70K forfeiture based on the store's total criminal take of $270,000. But he argued that, as a store employee, he personally saw none of the profits. The district court agreed with him, the Sixth Circuit did not, and the Court granted cert.

The cert petition compares the far-reaching Sixth Circuit opinion below with the more circumscribed (read: reasonable and fair) D.C. theory. In D.C., a defendant is required to forfeit only those “funds that actually reach the defendant.” United States v. Cano-Flores, 796 F.3d 83 (D.C.Cir. 2015). That, Honeycutt argues, is how the statute should be applied.  The Tenth Circuit is not cited in the survey. It appears that our circuit has not directly addressed this question, see United States v. Wilson, 244 F.3d 1208 (10th Cir. 2001) (holding drug coconspiritors liable for $4.5 million in sales), although district courts have applied joint and several liability in line with the Sixth Circuit's reasoning.

Forfeiture law can be difficult to sort out.. But we routinely see criminal forfeiture allegations in drug conspiracy cases seeking astronomical forfeiture amounts from low-level street dealers who are caught up in the same indictment. A joint-and-several forfeiture judgment could financially cripple a client long after release from prison. A ruling in favor of Honeycutt will, no doubt, favorably change criminal forfeiture practice in this Circuit.

Wednesday, December 7, 2016

Calling all lawyers with CCA-Leavenworth clients past & present

As many readers are aware, last October United States District Court Judge Robinson appointed a Special Master to perform tasks related to intrusions by CCA-Leavenworth and other federal detention facilities into attorney-client communications. These intrusions included providing the government with video recordings of attorney-client meetings at CCA, and audio recordings of attorney-client telephone calls from CCA. Among other things, the Court directed the Special Master to identify and remove privileged communications from recordings and other data turned over to the Court by the government.

On Tuesday, the Special Master filed a report detailing his work to date. Cross-checking available attorney phone numbers against 48,333 individual inmate phone calls, the Special Master has discovered that CCA-Leavenworth provided the government with 204 recordings of calls made to known attorney phone numbers.

This count may not be complete. Just this week, the government "reported that it had just found additional audio recordings, which it has since submitted to the Court." Also, the Special Master may not have all of the phone numbers at which attorneys have taken calls from CCA clients.

If you want to know whether your number is among the 204 recorded phone calls, check out the chart on the last page of the Special Master's report.

If you want to submit your phone number(s) to the Special Master, you may do so as invited in the report:

"Finally, given that there will now be additional analysis of the audio calls, the Special Master issues the following invitation. Any attorney who may have received a telephone call from an inmate at CCA for the purpose of obtaining legal advice is invited to provide me with the telephone numbers those inmates may have called (including the attorney’s direct-dial, home, and cell numbers, if applicable). The Special Master will add these numbers to the inventory of "known attorney telephone numbers" described above. Attorneys wishing to supply these telephone numbers should send them via email to, with the subject line "KATN." The body of the email should include only the attorney’s telephone numbers, and the attorney’s name.

By submitting such an email, the sender is representing that he or she: (1) is an attorney, and (2) may have received telephone calls from inmates at CCA-Leavenworth at the numbers listed, for the purpose of obtaining legal advice. Any person who sends information not meeting these criteria is subject to contempt of court. All telephone numbers submitted will be checked to ensure they belong to the submitting attorney."

Sunday, December 4, 2016

Changes to Rule 41

As of December 1, 2016, a federal magistrate judge can issue a warrant that authorizes a federal agency to search multiple computers, cell phones, and other data storage devices across the country and overseas. Essentially, with a single warrant issued in a single district, the FBI can remotely hack into data sources well beyond the borders, as long as the target has taken action to protect their location.

The Electronic Frontier Foundation breaks down the implications of this massive power expansion: "this change would grant authority to practically any judge to issue a search warrant to remotely access, seize, or copy data relevant to a crime when a computer was using privacy-protective tools to safeguard one's location." An effort to protect privacy could actually make one more susceptible to government intrusion. This is less about the means by which agents may search and more about the geographic and jurisdictional reach of a particular court. Google, joining about 30 other agencies commenting on the rule change, called it a "monumental" Fourth Amendment violation.

Here is the actual language:
A magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if: (A) the district where the media or information is located has been concealed through technological means; or (B) in an investigation of a violation of 18 U.S.C. § 1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts.
The second change, (B), is of less concern; the first, however, has drawn criticism for its vagary and the possible unintended consequences. Possible impediments to judicial review include ex parte application procedures and the invocation of good faith and qualified immunity to escape actual judicial resolution of substantive challenges, according to Congressional Research Service, in Digital Searches and Seizures: Overview of Proposed Amendments to Rule 41 of the Rules of Criminal Procedure

The other controversy swirling is how the rule was changed--by a rather obscure judicial rule-making committee that has power to correct mistakes or change procedure. But this change is substantive, and many believe it should have been subjected to full Congressional scrutiny.

Thursday, December 1, 2016

Slip Sliding Away (Subtitle: Stingray ugh).

The information's unavailable to the mortal man
We're working our jobs, collect our pay
Believe we're gliding down the highway
When in fact we're slip slidin' away

Slip slidin' away
Slip slidin' away
You know the nearer your destination
The more you're slip slidin' away

Paul Simon, 1977

The 7th Circuit recently released an interesting opinion regarding the use of Stingray technology. In United States v. Patrick the 7th Circuit tackles "the first court of appeals case to discuss the use of a cell-site simulator."

The appeal is (of course) decided on other grounds but the court seems interested in giving some hints on the issue of how they might rule if they needed to. The majority doesn't seem too offended by the use of Stingray. The majority discusses the open question of whether the use of Stingray could be a search in the first place. The majority mentions two paths - pen register type view and GPS type view. They seem to be leaning towards the pen register category.

The majority also discusses that the current Fourth Amendment jurisprudence does not require "that search warrants also must include a specification of the precise manner in which they are to be executed."

The majority concludes that they don't have to reach the Stingray issue as the defendant had a warrant for his arrest, was wanted on probable cause, and was taken into custody in a public place. Therefore there was no expectation of privacy, and therefore mechanism of discovery is irrelevant.

There is a strong dissent written by Chief Judge Wood. It is worth a read. Judge Wood does not seem pleased in how the government has "purposefully concealed the Stingray's use from the issuing magistrate, the district court, defenese counsel, and even this court." Chief Judge Wood shows concern about the abilities of Stingray, labelling it is "much more than a high-tech pen register." Her opinion also mentions the information the court would need to make a decision on the technology, and the extent that the record is lacking due to the government's actions.

We should see more opinions coming down on these types of technology. As defense counsel, we hope to see more skeptical judges like the dissent here preventing our clients' Fourth Amendment rights from slip sliding away.

Tuesday, November 29, 2016

Third Chair: Summer Intern Program

The Kansas FPD is pleased to introduce Third Chair, a 2017 summer criminal defense clinic for law students who are interested in public service. Our goal is to develop diversity in the field and to provide first-hand experience in holistic public defense.

The program begins May 30, 2017, with options for either a five- or ten-week program based in our Topeka office. The class will be limited to eight students. This is an unpaid internship, however, we will work with schools for credit or fellowships, and we are exploring other sources of funding. If you are interested in sponsoring a student, please let us know.

Please share this with anyone who might be interested. More information is available on our website at  The application deadline is February 24, 2017; applications will be accepted on a rolling basis. Please direct any questions to

Tuesday, November 22, 2016

No, Mr. Prosecutor, you may not call the large black defendant "King Kong"

Looking for some frank talk about race and criminal justice?

United States District Court Judge Gergel of South Carolina and the Fourth Circuit call it as they see it: Referring to a large black defendant during a capital sentencing proceeding as "King Kong," a "caveman," a "monster," and a "beast" violates due process, especially when combined with the elicitation of evidence that the defendant once had an affair with a "blonde-headed lady" (read: white), and that he had assaulted a white man who, while in a coma, dreamt he was being chased by murderous black Indians.

Judge Gergel (who embedded the above image in his order granting federal habeas relief): "Like the injection of the 'black Indians' dream and the Petitioner's white lover, the King Kong reference is a not so subtle dog whistle on race that this Court cannot and will not ignore."

The Fourth Circuit (affirming Judge Gergel's order):

The prosecutor's comments were poorly disguised appeals to racial prejudice. It is impossible to divorce the prosecutor's "King Kong" remark, "caveman" label, and other descriptions of a black capital defendant from their odious historical context. And in context, the prosecutor's comments mined a vein of historical prejudice against African-Americans, who have been appallingly disparaged as primates or members of a subhuman species in some lesser state of evolution. We are mindful that courts "should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning." Donnelly, 416 U.S. at 647. But here, "the prosecutor's remarks were quite focused, unambiguous, and strong." Caldwell v. Mississippi, 472 U.S. 320, 340 (1985). The comments plugged into potent symbols of racial prejudice, encouraging the jury to fear Bennett or regard him as less human on account of his race.

The "King Kong" comment especially drew on longtime staples of racial denigration. That comment was "not just humiliating, but degrading and humiliating in the extreme." Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 285 (4th Cir. 2015) (en banc) (internal quotation marks omitted). Likening Bennett to King Kong in particular stoked race-based fears by conjuring the image of a gargantuan, black ape who goes on a killing spree and proceeds to swing the frail, white, blonde Fay Wray at the top of the Empire State Building. Petitioner is right to note that the film is regarded by many critics as "a racist cautionary tale about interracial romance." Br. of Appellee at 40 (quoting Phillip Goff et al., Not Yet Human: Implicit Knowledge, Historical Dehumanization, and Contemporary Consequences, 94 J. Personality & Soc. Psychol. 292, 293 (2008)).


The record here tells the story. There is no need for elaboration on our part. The criminal justice system must win the trust of all Americans by delivering justice without regard to the race or ethnicity of those who come before it. The many instances where the system performs its duties admirably help to build the trust of the people. A proceeding like this one threatens to tear that trust apart.

Sunday, November 20, 2016

Condition Creep

Supervised release conditions sometimes expand quietly and in small increments, while we are not paying close attention. Then one day, these conditions (which are not necessarily statutorily drawn) are accepted as commonplace restrictions on our clients' rights. Condition creep. Certainly, constitutional rights can be limited while one is on supervision or because of one's status as a felon or sex offender. But constitutional rights cannot be stripped away wholesale.

Pending before the Supreme Court is Packingham v. North Carolina. Cert was just granted October 28, so the case is neither fully briefed nor set for argument. Mr. Packingham, a North Carolina resident, was a convicted sex offender. Six years after his conviction, North Carolina made it a felony for registered sex offenders to access certain websites, including Facebook, YouTube, and the New York Times. This sex offender posted on Facebook, giving thanks to God for the dismissal of a traffic ticket, no doubt the sort of conduct state lawmakers sought to curtail. But he did not get away with his crime -- a vigilant internet Javert spotted the offending post and Mr. Packingham was convicted.

The issue before the Supreme Court is whether the law violates the First Amendment, both on its face and as applied to the petitioner. The cert petition discusses at length similar supervised release conditions, noting that several federal courts have rejected supervised release conditions that compromise constitutional rights. In fact, Packingham tracks issues that the Tenth Circuit addressed in United States v. Ullman, 788 F.3d 1260 (10th Cir. 2015). 

Watch for condition creep, especially if your client has any sort of sex-related prior convictions and regardless of the nature of the current offense. See United States v. Martinez-Torres, 795 F.3d 1233 (10th Cir. 2015).  So make the objections, and we will keep an eye on Packingham.

Thursday, November 17, 2016

Bell and Kansas Robbery

Super, you say. Missouri second-degree robbery is not a crime of violence. But my client was convicted of Kansas robbery. Lot of help this blog is.

Well, friend, take heart. The parallels between the Kansas and Missouri robbery statutes are impressive. According to Bell, Missouri robbery is not a crime of violence because “in Missouri a defendant can be convicted of second-degree robbery when he has physical contact with a victim but does not necessarily cause physical pain or injury.” The same is true in Kansas.

Your bellwether case is State v. McKinney. The defendant was convicted of robbery. The victim testified that the defendant pushed her as he grabbed her purse. The defendant testified that he grabbed her purse, but did not shove her. The Kansas Supreme Court held that merely grabbing the victim’s purse, causing physical contact with her arm, sustained a robbery conviction. Same as Bell. Not a crime of violence.

--- From Kirk Redmond

Tuesday, November 15, 2016

Bell and the Commentary to USSG § 4B1.2

Here’s what the government will say:

“Maybe Bell is right that robbery doesn’t have a force element. But there’s more than one way to skin a crime of violence. The commentary to § 4B1.2 said (prior to the August 1, 2016 amendment) that the definition of a ‘crime of violence’ includes ‘robbery’. And because your client was convicted of robbery, she has been convicted of a crime of violence.”
Not so.
A quick post-Johnson review. After Johnson smacked down the residual clause, there are two ways for something to be a crime of violence under § 4B1.2. First, it can be an enumerated offense: burglary, arson, extortion, or the use of explosives. I don’t see robbery anywhere in that list. Second, it can be an offense that involves the use, attempted use, or threatened use of physical force. And as Bell establishes, robbery doesn’t qualify there, either. So what to do with the commentary to 4B1.2 listing robbery as a crime of violence?
The First Circuit answered that question in United States v. Soto-Rivera. Remember, guidelines come in two parts: text and commentary. The text is binding. The commentary is not. When the commentary is inconsistent with the text, the text controls. And after Johnson, commentary that says an offense is a crime of violence is inconsistent with the text when that offense is not burglary, arson, extortion, the use of explosives, and lacks a force element. As a Seventh Circuit decision expounding on Soto-Rivera explains,
Under § 4B1.2(a), "crime of violence" means subpart 1 (the elements clause) and subpart 2 (the four specific crimes followed by the residual clause). If the application note's list is not interpreting one of those two subparts---and it isn't once the residual clause drops out---then it is in effect adding to the definition. And that's necessarily inconsistent with the text of the guideline itself.

Bell followed the First and Seventh Circuits, holding that “[p]ost–Johnson . . . § 4B1.2's commentary, standing alone, cannot serve as an independent basis for a conviction to qualify as a crime of violence because doing so would be inconsistent with the post-Johnson text of the Guideline itself.”
The Tenth Circuit agreed, long ago, as we blogged about here. In United States v. Armijo, our Circuit held that commentary which expanded the text could not support classifying a prior offense as a crime of violence. After Johnson, a crime of violence must be an enumerated offense (burglary, arson, extortion, use of explosives) or have a force element. As Bell explains, a prior offense which does not fit those categories is not a crime of violence. At least prior to the August 1, 2016 amendments. More on that later.

---From Kirk Redmond

Sunday, November 13, 2016

Bell: The case so nice we're blogging it thrice

We’re making progress. Since Johnson, the Circuits have consistently held that robbery is not a crime of violence or a violent felony. Thus far, robbery has failed the federal enhancement test in the First Circuit, the Second Circuit (though the opinion has been vacated pending Beckles, you should still rely on its reasoning, and the reasoning of the district courts that agree), the Fourth Circuit, the Eighth Circuit, and the Ninth Circuit. We’re 5-0.

Make it 6-0. Recently, in United States v. Bell, the Eighth Circuit found that Missouri second-degree robbery is not a crime of violence. Why? Well, because “in Missouri a defendant can be convicted of second-degree robbery when he has physical contact with a victim but does not necessarily cause physical pain or injury.” That quantum of force fails the Johnson test.
If you have a case where your client has a conviction for Missouri second-degree robbery, that conviction is not a crime of violence or a violent felony. Check back with us later this week for more Bell deliciousness.

---From Kirk Redmond

Thursday, November 10, 2016

I was just trying to help....

While I am sure we all appreciate a judge who is trying to help out clients, we have to draw the line somewhere. And here, that line is giving them a longer prison sentence in an effort to promote their reformation.

That is the issue in Tidzump a published Tenth Circuit case that was decided this week. There, Ms. Tidzump asked for an 18 month sentence after being convicted of assault. She cited her need for treatment as a factor supporting the sentence recommendation. The Judge, knowing that she would need at least 24 months remaining on her prison sentence to get into the RDAP program, imposed a 31 months prison sentence. The sentence of 31 months was a below guideline sentence.

The Tenth Circuit reversed the conviction even under a plain error standard, because the "district court expressly lengthened the sentence for the purpose of promoting rehabilitation." The opinion cites heavily to Tapia v. United States, which held that under 18 U.S.C.§ 3582(a) "imprisonment is not an appropriate means of promoting correction and rehabilitation."

The lessons to be learned here are that if you want a client to get RDAP, make sure the reasons to support such a sentence aren't about rehabilitation. Remember too that (as the Supreme Court explained in Tapia) the district court is never sentencing a client to RDAP, that decision is controlled by BOP ("The sentencing court may have had plans for Tapia's rehabilitation, but it lacked the power to implement them.).

Tuesday, November 8, 2016

Proffer failed? Don't panic---you can still defend your client at trial

Your client's proffer was for naught, and now you're facing trial. The proffer letter from the government promised not to use your client's statements against him except to rebut any factual assertions made by him or on his behalf.

Do you dare go to trial? If you do, how vigorously can you defend your client without triggering the proffer waiver?

You won't get much guidance from the Tenth Circuit, but the Second Circuit recently issued a detailed opinion setting out some ground rules, and reversing a rap mogul's murder-for-hire conviction in the process.

In United States v. Rosemond, the Second Circuit held that the district court's interpretation of the defendant's proffer waiver "unduly restricted the permissible scope of his lawyer’s argument and questioning of witnesses, in violation of the Sixth Amendment."

The Second Circuit explained that the following acts do not trigger a proffer waiver:
  1. pleading not guilty;
  2. arguing generally that the Government has not met its burden of proof;
  3. arguing specifically that the Government has failed to prove particular elements of the crime, such as intent, knowledge, identity;
  4. cross-examining a witness in a manner to suggest that he was lying or mistaken or was not reporting an event accurately;
  5. cross-examining a police officer about discrepancies between his testimony and his earlier written report; and
  6. arguing that the Government failed to present corroborating evidence.
The bottom line? A dead proffer does not have to mean a dead defense. Read Rosemond if you find yourself in this predicament.
Image result for proffer cemetery

Sunday, November 6, 2016

New Discovery Order for the District of Kansas

For more than a year, a District of Kansas committee headed by Judge Julie A. Robinson has worked to craft a new discovery and scheduling order. Now a draft has been completed, approved by the judges, and published for public comment. It is posted on the District of Kansas website (for some reason, it is under the newly proposed patent rules, go figure), or you can read it here. This will be applied district-wide, and is intended to provide early, complete, and accountable disclosure.

Please take time to read it carefully and critically. We need to get this right. The deadline for comments is November 26, 2016. We hope this order, or a close version, will be in place soon.

Tuesday, November 1, 2016

The Spoken Word

What the judge said and what the judge wrote are not always the same. When they conflict, which controls? The spoken word. It has been "the law in this circuit since the 1930’s” and remains so today.

In United States v. Young, decided October 31, 2016, the Tenth Circuit remanded a supervised release judgment to the district court with an order for the court to issue an amended judgment that conformed to its oral ruling. At the time of the revocation, the district court imposed an eight-month sentence and three years of supervised release, specifying that “all of the conditions that were previously imposed” would again apply.

But two weeks later, the district court issued the written judgment with different conditions of supervised release that had not been ordered from the bench. The written conditions required Mr. Young  to “reside at a residential re-entry center program, in the community corrections component allowing for work release, for up to 120 days, at the direction of the U.S. Probation Officer.” It also changed the previous requirement to “participate in an approved program for mental health,” to instead require Mr. Young to “participate as directed in a cognitive behavioral program." And, of course, because these were not announced at the time of sentencing, Mr. Young was not in a position to object.

The Tenth Circuit agreed "that the written judgment must conform to Mr. Young’s actual sentence. Rather than vacate Mr. Young’s sentence to remedy this clerical error, we remand with instructions to the district court to issue an amended judgment." The district court must conform the written to the oral judgment; it was not remanded to allow the court to expand or change the original ruling from the bench.

The take-away: take time to compare the written judgment (including the SR conditions) to the court's oral ruling and challenge any variance. This means paying special attention to the conditions recommended by USPO and the court's imposition of sentence. Correcting a variance in the written judgment could mean a great deal if there is a later SRV. Also, check to make sure that any recommendations from the court, such as BOP placement, RDAP, or concurrent sentences, are accurately and completely included in the written judgment.

Sunday, October 30, 2016

We meant what we said and we said what we meant

The Tenth Circuit reasserted two important rules last week in opinions granting sentencing relief to the defendants.

First, in United States v. Godinez-Perez, the Court reversed Mr. Godinez-Perez's drug-conspiracy sentence on grounds that the district court failed to make particularized drug-quantity findings. This was plain error, even absent an objection by Mr. Godinez-Perez:
we have held that "[a] sentencing court must make particularized findings to support the attribution of a coconspirator’s actions to the defendant as relevant conduct, whether or not the defendant asks it to do so or disputes the attribution." Figueroa-Labrada, 720 F.3d at 1264. In other words, even if the defendant does not lodge any objections to the PSR,* the district court must still make these particularized findings. Id.
*Please object anyway.

Second, in United States v. Henry, the Court applied the rule it adopted in United States v. Jones to reverse a supervised-release revocation sentence on grounds that the district court improperly admitted triple hearsay. As Jones explained, Rule 32.1(b)(2)(C) obligates district courts to apply the balancing test in the Rule's advisory committee notes to determine whether hearsay evidence may be considered in revocation cases.

Image result for "balancing test"That balancing test was not conducted in Henry:
the district court expressly relied on out-of-court statements the victim and his girlfriend made to a police detective, who in turn relayed them to Mr. Henry’s probation officer, who in turn presented them at the revocation hearing. Neither the victim, nor his girlfriend, nor even the detective was subject to cross-examination. Here, then, Rule 32.1(b)(2)(C) and Jones do apply, and here we must find error for the district court failed to conduct the balancing test Jones prescribes.
Henry also clarified that this balancing test need only be conducted with respect to the statements of non-testifying witnesses. Neither Rule 32.1(b)(2)(C) nor Jones applies to the statements of a witness who testifies and is subject to cross-examination.

Friday, October 14, 2016

UPDATE: You don't have an expecation of privacy in everything in your wallet in a few more states.

Back in June, we posted about an Eighth Circuit case that held that a scan of the magnetic stripe on the back of a credit card is not a search that would be afforded Fourth Amendment protections. We were, however, optimistic that a strong dissent might win the day in a future case asking the same question.

Well, maybe too optimistic. Yesterday, the Fifth Circuit, in United States v. Turner, similarly held that the scanning of a gift card stripe is not a search under the Fourth Amendment. Although this is not good news for defendants, there are some practical tips that can be taken from this opinion to hopefully help stem the flow of opinions going this direction.

1. Make a thorough record. While this is always important, it is especially important in cases with a technology angle. If you aren't familiar with the technology, the court likely won't be either. We need to employ experts and make sure we are making the best record possible. The Turner Court agrees:

At this point, it is helpful to describe the electronic information encoded in the typical gift card. The record lacks much detail about this, a deficiency that hurts Turner as he bears the burden of establishing a privacy interest. Useful information can be found, however, in other cases addressing whether scanning credit or gift cards amounts to a search.

2. Technology is changing. While these opinions are certainly not good on this issue, both opinions spend time reminding us of the changing nature of technology. The new chip readers mentioned in the dissent in Briere De L'Isle aren't at issue in this case, but the opinion mentions them and leaves room for a different outcome with different technology.

So while it is certainly disconcerting to know that we don't have Fourth Amendment protections in items in our own wallets, we can find some solace in knowing that a better record, or some tech advances may save the day in a future case.

Sunday, October 9, 2016

"Inserting a probe into a woman’s vagina is plainly a search when performed by the government"

And you thought law school was humiliating. At Valencia College (a state school in Orlando), female sonography students were encouraged to submit to transvaginal ultrasounds performed by their (male and female) peers for educational purposes. Some of the women objected. They were harassed out of the program.

The women sued. Two of them who submitted to the ultrasounds claimed that the procedure amounted to an unconstitutional search in violation of their Fourth Amendment rights. The district court dismissed their claims, holding that a search is not a search for Fourth Amendment purposes if it is motivated by educational interests.

The Eleventh Circuit reversed. No investigative purpose is required for a government intrusion to violate the Fourth Amendment, said the court:

"Although the employees did not conduct the transvaginal ultrasounds to discover violations of the law, the word 'search' in the Fourth Amendment does not contain a purpose requirement."

The court relied on Soldal v. Cook, 506 U.S. 56, 69 (1992). There, the Supreme Court announced that "the reason why an officer might enter a house or effectuate a seizure is wholly irrelevant to the threshold question whether the [Fourth] Amendment applies."

According to Valencia's website, the sonography program "offers real-life lessons to help students build skills and confidence." Real-life lessons indeed.

Tuesday, October 4, 2016

Blinded with science

Last month an executive report was prepared by the "[n]ation's leading scientists and engineers" that included "an extensive literature review" regarding the status of forensic science in criminal courts. The report includes criticisms of a number of often used fields of forensic science including "DNA samples, bitemarks, latent fingerprints, firearm marks, footwear, and hair." The report has some strong language regarding the lack of scientific vigor in some of these areas, describing the problem as "not just a hypothetical problem but a real and significant weakness in the judicial system."

The FBI and Department of Justice have of course, taken this opportunity to revisit scientific standards in their laboratories and make sure they meet the standards proposed by this review.

Just kidding.

Instead, the Justice Department is preparing "a packet of information [to send] to federal prosecutors regarding how to dispute this report in court.” The National District Attorney's Association accused the report authors of “scientific irresponsibility.”

This should create additional room to make Daubert challenges. A number of the "Senior Advisors" to the committee include Federal District Court and Appellate judges. Keep raising those challenges!

Antiquated notions indeed.

Sunday, October 2, 2016

DOJ: "Confidential sources can be motivated by factors other than combating crime"

Hold on to your hats. The DOJ Inspector General has published an audit of the DEA's confidential-informant program, recognizing that "confidential sources can be motivated by factors other than combating crime, including financial gain and avoidance of punishment; therefore, care must be taken to evaluate and supervise their use."
The report details a plethora of significant concerns about the DEA's use of informants. Some highlights:
  • Based on our review of DEA’s confidential source data, we estimated the DEA may have paid about $9.4 million to more than 800 deactivated sources between fiscal years (FY) 2011 and 2015.
  • Another area of concern is the DEA’s oversight of confidential sources it categorized as "Limited Use," often referred to as "tipsters," which DEA policy specifies are sources who make information available independently without direction by the DEA. The Limited Use category is regarded by the DEA as low-risk and therefore DEA policy requires the least supervision. Yet we found that Limited Use sources were some of DEA’s highest paid sources, with 477 Limited Use sources during the period of our review having received an estimated $26.8 million.
  • We also found the DEA did not appropriately track all confidential source activity; did not document proper justifications for all source payments; and, at times, did not adequately safeguard traveler information.
  • We were extremely concerned to discover the DEA condoned its confidential sources’ use of "sub-sources," who are individuals a source recruits and pays to perform activities or provide information related to the source’s work for the DEA.
  • Another significant area of concern is the limited management, oversight, and tracking of source payments by the DEA’s Intelligence Division.
  • The deficiencies we identified in this audit raise significant concerns about the adequacy of the current policies, procedures, and oversight associated with the DEA’s management of its Confidential Source Program.

Tuesday, September 20, 2016

Third Circuit grants as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(1).

It may be time to dust off those Second Amendment challenges to felon-in-possession prosecutions. In Binderup v. Attorney General United States, Nos. 14-4549 & 14-4550 (3d Cir. Sept. 7, 2016),  the Third Circuit granted as-applied Second Amendment challenges to 18 U.S.C. § 922(g)(1), holding that two challengers could not be forever prohibited from possessing firearms based on prior convictions for non-violent misdemeanors (punishable by more than one year’ imprisonment) that never resulted in any jail time.

Binderup was based on D.C. v. Heller, 554 U.S. 570 (2008) (establishing the personal right to possess firearms under the Second Amendment) in which the Supreme Court explained that firearms prohibitions like those for “felons and the mentally ill” were presumptively lawful regulatory measures. Id. at 627 n. 26 . In Binderup, the Third Circuit explained that because the lawfulness of a ban on possession of firearms by felons is just a presumption, this means the presumption can be rebutted. Slip op., at 28.
In granting the as-applied challenges, the court explained:
The Challengers’ isolated, decades-old, non-violent misdemeanors do not permit the inference that disarming people like them will promote the responsible use of firearms. Nor is there any evidence in the record to show why people like them remain potentially irresponsible after many years of apparently responsible behavior. Without more, there is not a substantial fit between the continuing disarmament of the Challengers and an important government interest. Thus, § 922(g)(1) is unconstitutional as applied to them.
Slip op., at 39. The court heard the case en banc, and the 184-page opinion was highly fractured.
Lyle Dennison explains that this is the first time a federal appeals court has granted a Second Amendment challenge when the person was plainly prohibited from possessing firearms under 18 U.S.C. § 922(g). He also explains that the Supreme Court has not taken an as-applied challenge under the Second Amendment post-Heller, leading to a possibility that this could be the case.
Importantly, a bloc of five judges in the majority concluded that 18 U.S.C. § 922(g)(1) is unconstitutional when used against anyone whose crime did not involve violence or any other signs that it was a serious offense. Thus, under this rationale, if a defendant does not have a prior violent crime in their past, then there is an argument that 18 U.S.C. § 922(g) cannot permanently prohibit the defendant from exercising their Second Amendment rights.

Sunday, September 18, 2016

Just Between Us

As has been widely reported (here, here, and here, for instance), this summer the federal criminal-defense bar learned that the Kansas United States Attorney's Office was in possession of video recordings of attorney-client meetings at CCA, and audio recordings of attorney-client telephone calls from CCA.

Links to orders and other papers from the ensuing litigation are now available at our website, along with our suggestions for protecting your attorney-client communications at all federal detention centers. This information will remain on our site for the foreseeable future, and we will update it as necessary. In the meantime, be vigilant.

Sunday, September 11, 2016

Government's "protected discovery practices" under fire by the courts

Practitioners in Kansas City know the drill: The government conditions discovery on a promise not to give copies to the defendant, or on an agreement that defense counsel may only view the discovery in the government's office under strict conditions.

These days are coming to an end.

Earlier this summer, Tenth Circuit Judge Holmes, joined by Judge Kelley, issued a concurring opinion in an unpublished case to express "significant concern regarding the ethical or legal propriety" of conditioning discovery on an agreement not to give copies to the defendant.

And last week, Kansas District Court Judge Robinson granted a motion under both Rule 16 and a standard pretrial discovery order to compel the government to give defense counsel copies of videos of controlled buys from the defendant.

In United States v. Perez-Madrigal, defense counsel requested copies of these videos and was told, simply, "no." The government insisted that counsel would have to review the videos in the government's office, without his client present (at least "initially"). After hearing from the parties, Judge Robinson rejected all of the government's justifications (informant safety; evidence safekeeping) for not allowing counsel to have copies, and for excluding the defendant from counsel's initial review of the evidence.

Judge Robinson then went further, pointing out that the government's protected discovery practices "significantly interfere" with the defendant's Sixth Amendment right to prepare a defense; they "undermine[] the fostering of trust between a defendant and his attorney"; and they make it "difficult for counsel to provide effective prepresentation [with respect to plea bargaining], and for the Court to accept a defendant's plea knowing that it was made voluntarily and with knowledge of the factual basis for the plea." Finally, Judge Robinson emphasized that it is "not the responsibility or duty of the USMS" to transport defendants to the government's office to review discovery.

In the end, the Court rejected the government's practice of "applying protective discovery as a default rule to an entire genre of cases." If the government has good cause to restrict discovery in a particular case, it may request a protective order.

Monday, September 5, 2016

Why shouldn't confrontation rights apply at sentencing?

Earlier this summer, a panel of the Tenth Circuit declined a pro se defendant's invitation to overrule 10-year-old precedent reiterating that "the Confrontation Clause does not apply at sentencing," and holding that "Crawford does not require otherwise." The panel did not address the merits of the issue, but rather simply noted that one panel may not overrule another panel "absent en banc reconsideration or a superseding contrary opinion by the Supreme Court."

Does the issue have merit? The Sixth Amendment itself does not speak of confrontation as a trial-only right. And it appears to grant equal importance to confrontation and counsel---a right that we have long understood applies at sentencing:

The clauses are identically structured. So why the different treatment? The rule that confrontation is not a sentencing right can be traced back to a 1949 Supreme Court case that was decided in a world of jury trials and indeterminate sentencing. The sentencing landscape today is utterly different. As anyone who has worked in the 21st century criminal-justice system well knows, "[f]or most felony defendants, the adversarial process begins at sentencing."

That observation---made by Idaho College of Law Professor Shaakirrah R. Sanders---and the structure of the Sixth Amendment's text are at the heart of a new article by Sanders titled The Value of Confrontation as a Felony Sentencing Right. This article is your road map to claiming a confrontation right at sentencing. Read it. Use it. Win.

Tuesday, August 30, 2016

"No one is actually being lugged off in cold irons bound."

Questions concerning sex offender registries figuratively ask where to draw lines. One main question is at what point do we finally draw the line and say registration is punishment? In the case of Michigan's registry, lines are also literally drawn. Under the Michigan law, offenders cannot live, work, or "loiter" within 1,000 feet of a school zone. For offenders in Grand Rapids, that is a severe restriction:

Based on that restriction, and a number of other factors, the Sixth Circuit held that the Michigan SORA law imposes punishment and is subject to the Ex Post Facto clause. The important factors are summarized by the court:
"A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by—at best—scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law. SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information."
Obviously this is a Michigan registry and a Sixth Circuit case. It is still an important one because hopefully lines are being drawn as sex offender registries get more and more onerous on our clients. Also important in this decision is that an Ex Post Challenge was effective. While it has seemed like these challenges were dying on the vine, maybe there is still some room left.

Also important is that the Sixth Circuit put weight in the research that shows that maybe these registries aren't as effective as we thought/hoped they would be. It appears from the opinion that the government was not very effective at proving that they were. Good to see a court looking into the evidence to support such a registry.

Sunday, August 28, 2016

Assault is an element of EVERY § 111(a)(1) offense

Yes, it's true that the statute is titled "Assaulting, resisting, or impeding certain officers or employees." But every conviction under 18 U.S.C. § 111(a)(1) has an essential element of assault. So said the Tenth Circuit last week in United States v. Wolfname, finding that a district court's failure to instruct on the assault element was plain error necessitating a reversal of the defendant's "resisting and interfering" conviction.

Draft your jury instructions accordingly.

Wednesday, August 24, 2016

"[I]t is anachronistic to use state residence as a justification . . . for reasonable suspicion."

Does driving a car with tags from Colorado (or California or DC or Michigan) make you a suspicious person? Is I-70 a "known drug corridor" that only suspicious people would use?

No, no, and stop saying that, says the Tenth Circuit to Kansas Highway Patrol Officers Richard Jimerson and Dax Lewis, in an opinion reversing the district court's grant of qualified immunity to the officers in a civil action against them:

"Absent a demonstrated extraordinary circumstance, the continued use of state residency as a justification for the fact of or continuation of a stop is impermissible."

"[T]hat Vasquez was driving on I-70 does not make his otherwise innocent conduct suspicious. I-70 is a major corridor between Colorado and the East Coast. It could equally be said that it is suspicious to not drive from Colorado to Maryland along I-70."

Sunday, August 21, 2016

What to expect when you're expecting a prison term

"On the path that American children travel to adulthood, two institutions oversee the journey. The first is the one we hear a lot about. College.

. . . [The second] institution is prison."

It’s back-to-school season, and we locals are feeling it here in Lawrence, Kansas. It’s generally a happy occasion for KU students, whether they’re freshmen excited about starting college, or return students reuniting with old friends and professors. Either way, they have little to fear. After all, KU offers a free, detailed orientation program.

These days, we’re not likely to send our kids off to college without orientation. And we shouldn't send our clients off to prison without it either.

U.S. Probation & Pretrial Services offers an orientation program four times a year to prepare clients in both Kansas and the Western District of Missouri to go to federal prison. The program is open to clients and their families (and other loved ones), as well as to lawyers. I attended the program this month, and I cannot stress enough how informative it is.

Among other things, you will learn (or be reminded of):
  • What personal business to take care of before going to prison (utility bills, child support, student loans, pending charges & detainers);
  • How to self surrender;
  • What to take (and what not to take) to prison;
  • What programs are available in prison (educational, vocational, religious, mental health, medical);
  • What to expect with respect to visitation, phone calls, email, etc.; and
  • How federal prisons help prepare clients for release.
At the program I attended, a young professional couple who met in a halfway house after each had spent many years in prison spoke about their experiences in an effort to allay the fears of incoming clients and their families. Their stories were encouraging, and their light-at-the-end-of-the-tunnel message was puncutated by the fact that they were celebrating the recent purchase of their first home.

Mark your calendars: The next program will be held on Thursday, November 3, 2016, 3:00 p.m., at the Kansas City, Missouri, federal courthouse. If you and your client (or your client's family) cannot make it to Kansas City, you can participate via videolink from the federal courthouses in Wichita and Topeka.

Sunday, August 14, 2016

How to object to drug quantity

Let me begin here with the bottom line: We cannot object to drug quantity on the basis of X, and appeal drug quantity on the basis of Y. Now for the details:

Sentencing in drug cases continues to be driven by drug quantity. As you know, this means that both guideline sentences and statutory mandatory minimum sentences may be significantly increased for a conspiracy defendant based on the quantities dealt by his or her codefendants---but only if the judge makes the particularized findings required by USSG 1B1.3(1)(B).

Last week, the Tenth Circuit issued a stark reminder that we need to be specific in our objections to the judge's findings when it comes to drug quantity.

First, we should always remember that factual allegations in the PSR become actual facts at sentencing if we don't object to them. This is by way of Rule 32, which warns that the sentencing court "may accept any undisputed portion of the presentence report as a finding of fact."

Second, the judge must make a number of findings under Section 1B1.3(1)(B), and we need to be specific about which of those findings is disputed. Do we object to how the judge has defined "the jointly undertaken criminal activity"? Or do we object to how the judge has measured whether certain conduct fell within the "scope" of that activity, or whether it was "in furtherance" of that activity or "reasonably foreseeable" in connection with that activity?

In United States v. Bustamante-Conchas, the defendant framed his objection to the sentencing court's drug quantity finding in terms of foreseeability and only foreseeability. On appeal, he argued that the court failed to make a particularized finding as to the scope of the jointly undertaken criminal activity. But we can't object to relevant conduct on one ground below, and on a different ground on appeal: "Without a timely objection on the specific ground now argued, the issue of the district court’s scope finding was forfeited."

Wednesday, August 10, 2016

Sentence-manipulating stash-house stings violate due process

How about this for a non-cooperator sentencing outcome:

Guideline sentence = 35 years.
Mandatory minimum = 25 years.
Sentence imposed = 14 years.

Those are the numbers from this stash-house-sting defendant's sentencing, during which Judge Gerald Austin McHugh of the Eastern District of Pennsylvania declared that enforcing the mandatory minimum where investigating agents preordained the sentence during the sting operation would violate due process.

The facts:

A CI trolling for work reported a random encounter with Clifton McLean, during which McLean allegedly said he was "looking for something to take." At the direction of ATF agents, the CI proposed to McLean that they rob a stash house containing an unspecified number of kilos of cocaine. It was not until several communications later that an undercover ATF agent mentioned 8-10 kilos to McLean. As the district court would later note, McLean did what anyone would do: He embraced the serendipity of the situation. "Indeed, any defendant who would suddenly opine that he was willing to rob the stash house so long as the take did not exceed 4.9 kilograms would obviously be astute enough to withdraw altogether."

Some golden opinion nuggets (but don't stop here—read the whole opinion):

"From my review of reported cases nationwide, I have not identified any investigation where the specified amount of cocaine in the fictional stash house was less than 5 kilograms. By statute, 21 U.S.C. § 841(b)(1)(A), 5 kilograms is the amount that triggers exposure to a 20-year mandatory minimum sentence."

"By . . . proceeding to raise the stakes with an inflated amount of drugs, the Government confuses responsibility with reward."

"[I]t is the following combination of factors that leads me to conclude that enforcing [the 25-year] mandatory minimum would offend due process: the inherently arbitrary way in which stash house sting cases first ensnare suspects; the immense power delegated to case agents who can pre-ordain a sentence at the outset of the operation; the lack of any meaningful way to test the validity of the Government’s justification for the amount of narcotics built into the sting; the lack of a genuine nexus between the amount of narcotics proposed and the defendant’s culpability; the lack of sufficient evidence here that McLean ever sought to deal at the level proposed by the Government; the lack of a criminal record that unambiguously demonstrates McLean had a propensity for violence, aside from his braggadocio; the risk that the sheer immensity of the sentences that follow from such operations compels guilty pleas; and the disparities in sentencing that are seemingly endemic to all of these prosecutions because the structure of the sting mandates lengthy imprisonment for any non-cooperator."

But what about officer safety?

Judge McHugh was skeptical of the government's argument that agents must invoke high quantities in fictional stash houses to protect their credibility and safety in the field.

First, "[d]efendants have little ability to challenge or verify evidence of undercover operations that is presented solely in the form of testimony by a Government agent. Courts should exercise caution before automatically adopting ‘expert’ opinion from law enforcement about the essential elements of undercover operations, where accepting such opinions has the effect of controlling sentencing. * * * There are no peer-reviewed journals within the narcotics trade. There is no way to test the premises on which these sting operations are based. None of the traditional means by which expert testimony can be tested in a systematic way apply here, yet courts are expected to accept such opinion as the justification for undercover operations that inexorably and indiscriminately give rise to large mandatory minimum sentences."

Second, "tying the physical safety of an agent to a mandatory triggering quantity of drugs is problematic. Such a rationale cannot help but inhibit any judge who must consider the implications of sting operations because no responsible judicial officer would ever want to place agents in harm’s way."

Third, assuming that officer safety does, in fact, hinge on proposing that the target steal a large quantity of drugs, "why is it necessary to charge the target of the investigation with such high amounts in every case?"

Ultimately it is the government’s charging decision that rankles the court: "[E]ven if one were to accept the validity of the Government’s premise, or err on the side of caution so as not to put undercover agents at risk, that operational imperative should not become the basis for charges against the defendant where the defendant’s assent to the amount of narcotics does not accurately reflect culpability."

"I decide here that the statute is unconstitutional as applied in the circumstances of this case, because McLean was not properly charged with a crime involving 5 kilograms of cocaine. Stated differently, the branch of government with which I take issue in not the legislative, but the Case executive, and its use of mandatory minimum sentences in a manner which I have no reason to believe Congress contemplated."

Cool, but can my client get in on this?

Judge McHugh suggests that stash-house stings inherently violate due process:
"[I]n my view, a concentration of power that allows the Government to define both crime and punishment, with no possibility for judicial review of the facts of the individual case, amounts to a structural violation of substantive due process violations."

But he also finds a due process violation based on the facts at hand. The safest route is to argue that stings like this violate due process both facially and as applied to your client.

What does the Tenth Circuit have to say about this?

The Tenth Circuit is ahead of some other circuits by recognizing that courts may vary or depart because of sentencing entrapment (also called sentencing manipulation). See United States v. Beltran, 571 F.3d 1013 (2009). Check out Beltran and make sure your argument is couched in the standards it adopts (or explain why you don't have to meet those standards, whether because McLean is better reasoned or otherwise).

One last note: Some courts (including the Tenth Circuit) have offhandedly stated that district courts may not depart below a statutory mandatory minimum based on sentencing entrapment. But sentencing entrapment is a due-process argument. It is a constitutional argument. And just as rock always defeats scissors, in every battle between the constitution and a statute, the constitution by definition wins.