Wednesday, May 25, 2016

"Civil death" by collateral consequences justifies probation

Have you ever wondered just how many collateral "penalties, disabilities, or disadvantages" our fine nation imposes on convicted felons? Nearly 50,000, according to Senior United States District Judge Frederic Block of the Eastern District of New York.

The depth and breadth of these life-disrupting consequences---known as "civil death" through much of our history---compelled Judge Block to impose probation in a drug case with an advisory guideline sentence of 33-41 months:

"The collateral consequences Ms. Nesbeth will suffer, and is likely to suffer---principally her likely inability to pursue a teaching career and her goal of becoming a principal . . . has compelled me to conclude that she has been sufficiently punished, and that jail is not necessary to render a punishment that is sufficient but not greater than necessary to meet the ends of sentencing."

Judge Block went two steps further. First, he declared that defense counsel and the prosecutor have a duty to timely inform the court of significant collateral consequences facing a particular defendant after conviction.

Second, he ordered that "[t]he Probation Department should include a collateral-consequences section in all future presentence reports."

The Tenth Circuit, by the way, has held that collateral consequences are not a proper consideration at sentencing (at least when considering them appears to benefit only wealthy white-collar defendants), though so far only in one unpublished (i.e., non-binding)

Thanks to Jim Pratt for bringing Judge Block's opinion to our attention.

Monday, May 23, 2016

"Two peremptory strikes on the basis of race are two more than the Constitution allows." ---Chief Justice Roberts, in Foster v. Chatman

Eddie Hood grew up in the Jim Crow South. In his hometown, Black residents had to enter the local cafĂ© by the back door, and were relegated to the balcony in the theater. His younger brother was one of the Black students whose entrance to the University of Alabama was blocked by Governor George Wallace in 1963. And so Mr. Hood was not surprised decades later when he was stricken from a jury pool in a capital case in Georgia. As he told his wife when he got home: "More than likely, they're not going to want too many of 'us' on the jury."

Timothy Tyrone Foster was an intellectually limited 18-year-old in 1986 when he was charged with capital murder after confessing to killing a retired schoolteacher in Georgia. Timothy was Black; the schoolteacher was white. During jury selection, the trial judge allowed the prosecutor to strike all four Black prospective jurors, including Eddie Hood, over defense counsel's Batson objections. The resulting all-white jury convicted Timothy, and sentenced him to death after the prosecutor urged the jurors to send a message "to deter other people out there in the projects."

Nearly 20 years and many court proceedings later, Mr. Foster's postconviction team finally gained access to the prosecution's jury-selection notes through a state open-records request. These notes showed that (1) the prosecution had highlighted all Black jurors on its list of prospective jurors; (2) the prosecution had circled the race on Black jurors' questionnaires (see above image of Mr. Hood's questionnaire); (3) the prosecution had identified several Black jurors in its notes as "B#1," "B#2," and "B#3"; and (4) the prosecution had ranked the Black jurors against each other just in case "it comes down to having to pick one of the black jurors."

Despite this evidence that the strikes were racially motivated, Mr. Foster's Batson claims were rejected by the Georgia courts. The Supreme Court granted certiorari, and REVERSED, 7-1 (Justice Thomas dissented).

Writing for the majority, Chief Justice Roberts held that the record left the Court with a "firm conviction" that the prosecutor's strikes were "motivated in substantial part by discriminatory intent." The Court flyspecked the State's claimed race-neutral explanations, finding them to have "no grounding in fact," to be "false," "an intricate story," "difficult to credit," "implausible," "fantastic," and "not true."

Chastising the State for acting "downright indignant" in response to the Batson claim, the Court concluded that "[t]he focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury."

Lessons learned from Foster:

In considering Batson error, "all of the circumstances that bear upon the issue of racial animosity must be consulted." Thus, even though the provenance of some of the prosecution's notes was uncertain, the Court rejected the State's invitation "to blind ourselves to their existence."

A prosecutor's race-neutral explanations might be undermined when:
  1. White jurors with similar traits are not stricken.
  2. A response said to be strike-worthy is not uncommon among jurors.
  3. The question that elicited a response said to be strike-worthy was badly worded.
  4. The prosecutor's reasons for the strike shift over time.
  5. The transcript of voir dire belies the prosecutor's claims about how jurors responded to certain questions.
  6. The prosecutor's claimed reasons are simply unreasonable or improbable.
  7. The prosecution file contains smoking guns of discriminatory intent.

Tuesday, May 10, 2016

Mandatory sex-offender polygraph violates 5th Amendment

You have just finished serving nine years in prison on a child-pornography conviction when the probation office petitions the court to add a condition of release obligating you to successfully complete a sex-offender treatment program. This program, in turn, obligates you to complete a "non-deceptive sexual history polygraph," and to agree that the examiner will report any crimes you confess to authorities.

Polygraph "testing" has no scientific basis.

This smells like a Fifth Amendment violation, so you object to the condition. The district court agrees! Victory! The court modifies the treatment condition to exclude any confession requirement (except as to your offense of conviction).
A few months later, your treatment provider says court order? What court order? And tells you that you have to answer the following polygraph questions or leave the program:
1. After the age of 18, did you engage in sexual activity with anyone under the age of 15? If yes, how many times?

2. Have you had sexual contact with a family member or relative? If yes, how many times?

3. Have you ever physically forced or threatened anyone to engage in sexual contact with you? If yes, how many times?

4. Have you ever had sexual contact with someone who was physically asleep or unconscious? If yes, how many times?

Surely the district court will protect you, having previously prohibited such questions? Alas, no. The district court reconsiders its earlier order and finds no real risk of incrimination. The court orders you to take the polygraph. The date is January 27. The polygraph is scheduled for February 11.

You file a notice of appeal and ask for a stay of the court's order. The government responds that it will seek your remand to prison if you do not take the polygraph.
The district court denies the stay on February 10. The exam is less than a day away. You seek an emergency stay from the Tenth Circuit, filing your request just before midnight.
Exam day arrives. Fearing an arrest should you not comply, you drive to the examiner's office. You are in the parking lot when you hear the sound of pounding hooves. Two men on white horses gallop around the corner. It's Tenth Circuit Judges Gorsuch and Matheson! They have stayed the polygraph order just in time!
Your appeal from the district court's polygraph order proceeds apace, and at last you are vindicated---the Tenth Circuit holds that the polygraph would be testimonial, incriminating, and compelled, and therefore the court order to take it violated the Fifth Amendment.
Lots of good stuff here on both what counts as an authentic danger of self-incrimination ("The district court mistakenly assumed that an assurance from the government was a substitute for immunity."), and what counts as compulsion ("A witness is compelled under the Fifth Amendment as soon as the government threatens him with a substantial penalty."). Want to know more? Read United States v. Von Behren.

Sunday, May 8, 2016

Here's what a substantively unreasonable sentence looks like

Substantively unreasonable harsh sentences do exist---at least in the Eighth Circuit.*

In United States v. Martinez, the district court sentenced Mr. Martinez to 262 months' imprisonment for possessing 50+ grams of methamphetamine with intent to distribute. This was a guideline sentence, assuming that Mr. Martinez was a career-offender under the residual clause because of a prior escape conviction. This assumption was wrong, as the government later conceded, but the district court also stated on the record that even if Mr. Martinez was "technically" not a career offender, the court would impose the same sentence as an upward variance. The court justified this alternative sentence on grounds that Mr. Martinez had been convicted 6 years earlier at age 18 on a state gun charge for a gang-related non-injury drive-by shooting; his escape had occurred during an arrest for failing to appear on the gun charge; and the government had presented evidence of more recent local gang ties at his federal sentencing.

On appeal, the Eighth Circuit held that the district court's alternative sentence was "substantively unreasonable":

First, Martinez’s convictions do not warrant such a severe upward variance. Martinez’s two convictions undoubtedly demonstrate serious, violent behavior, but the guideline range already accounted for these prior convictions, each of which received three criminal history points. . . .

Second, the evidence the government presented relating to Martinez’s gang ties does not justify a nine-year upward variance either. The government presented evidence Martinez appeared in music videos along with other members of the East Side Locos prior to his incarceration. He also appeared with other East Side Locos gang members in photographs. While these photos and videos show Martinez’s gang ties, they do not depict Martinez actively engaging in any violent behavior. And, more importantly, they do not depict such egregious, violent behavior that they warrant the substantial upward variance the district court imposed.

The Eighth Circuit cited Gall v. United States for the proposition that a major variance such as was imposed here should be supported by a more significant justification than a minor one. But of course, the raw facts are the same regardless of whether Mr. Martinez was "technically" a career offender or not. Whether viewed as a guideline sentence or a variance, this punishment did not fit the crime.


*Their existence in the Tenth Circuit is questionable. That Court has at least twice labeled lenient sentences substantively unreasonable, but has never, to this writer's knowledge, concluded that a harsh sentence was substantively unreasonable.

Wednesday, May 4, 2016

SANE nurse is member of prosection team for Brady purposes

Q: Who's a member of the prosecution team for Brady purposes?

A: A SANE nurse who examines the complainant "at the request of law enforcement in the pre-arrest investigation of a crime."

So held the Tenth Circuit earlier this week in McCormick v. Parker, No. 14-7095 (10th Cir. May 3, 2016), reversing a 28 U.S.C. 2254 petitioner's state conviction for child sexual abuse and accompanying life sentence.

The nurse in this case falsely testified that she was currently certified as a SANE nurse in Texas. The Tenth Circuit imputed her lie to the prosecution despite zero evidence that the prosecutor actually knew about the nurse's lapsed credentials. The lie was material because this "expert" provided the only direct evidence to corroborate the complainant's testimony.

You must try harder. It is not easy to become sane. - George Orwell

Monday, May 2, 2016

Extorting an Extortion Co-Conspiritor: Ocasio v. United States

Today a divided Supreme Court rejected a challenge to a conspiracy "under color of official right" to commit a Hobbs Act  extortion. In this Baltimore-based case, a group of policemen, including Officer Ocasio, had a deal with a local auto repair shop. When investigating a vehicle accident, they would recommend the car be taken to Majestic Auto Repair Shop. In return, Majestic paid the cops a cut. In some circles, this is known as a kickback.

In Ocasio v. United States, the challenge was to the extortion statute, which prohibited, inter alia, a conspiracy to "obtain money from another." Ocasio argued the "another" had to be someone outside the conspiracy. Justice Alito, writing for the majority, seemed to recast the issue (or "ultimately clarified") to focus on "the basic principles of conspiracy law," which he drew very broadly.  The majority concluded, "It is sufficient to prove that the conspirators agreed that the underlying crime be committed by a member of the conspiracy who was capable of committing it. In other words, each conspirator must have specifically intended that some conspirator commit each element of the substantive offense." Here, the conspirators shared a common criminal objective of obtaining money from another, even if "another" was a co-conspirator.

The varying opinions hinge on whether to hew to precedent, Evans v. United States, that essentially equated extortion with briberyJustice Breyer concurred with Ocasio's majority, but noted that the issue the Court decided was not fully briefed and the question of whether Hobbs Act extortion is "roughly the same" as taking a bribe was "exceptionally difficult." In the end, Justice Breyer bowed to Evans. Justice Thomas, though, dissented, challenging Evans and denigrating the incongruous majority holding that "an extortionist can conspire to commit extortion with the person whom he is extorting."

Then Justice Sotomayor dissented, joined by the Chief Justice; she, too, nailed the "unnatural outcome" of the majority opinion: "If a group of conspirators sets out to extort 'another' person, we ordinarily think that they are proposing to extort money or property from a victim outside their group, not one of themselves. Their group is the conspiratorial entity and the victim is 'another' person."

As Scotusblog notes, this opinion may raise more questions than answers for extortion prosecutions, and that the underlying issues of federalism were not really addressed or resolved.

Sunday, May 1, 2016

Out-of-District Warrants and the Stored Communications Act

Can a magistrate judge issue a warrant to seize data from a private email account held in another district? No. Neither the Stored Communications Act nor Federal Rule of Criminal Procedure 41, at least as currently written, authorize a judge in one district to issue a warrant to be served in another district. This was the ruling issued last week in United States v. Barber, D.Kan. 15-cr-40043-CM.

In Barber, an FBI agent obtained a search warrant from a District of Maryland magistrate judge to seize the content of the defendant's email account. The information was in the possession of Google Inc. and stored in California. "Special Agent O’Donnell testified in court that he believed he was able to ask any court with jurisdiction over a particular violation to issue a warrant when he was investigating email accounts without knowing where the account users were located." The defense challenged this warrant as unauthorized by federal law.

The Kansas district court first addressed standing. The defendant had an expectation that the contents of his email account were private (although that expectation did not extend to emails sent to another account, a standing issue still in dispute among the lower courts). The Court then turned to the warrant's validity. First, Rule 41: The Maryland magistrate court exceeded its authority "by issuing a warrant for a search outside his district. Rule 41(b) gives a magistrate judge authority to issue a warrant for a search and seizure of property located within the district."

The second question was whether the Stored Communications Act, found at 18 U.S.C. § 2703(a), authorized the warrant. The SCA did not authorize the out-of-district warrant. "The problem with utilizing the SCA to provide the jurisdiction the Maryland magistrate judge needed to issue the second warrant is this: The government presented no evidence that the offense being investigated occurred in Maryland. Courts that have interpreted the language 'jurisdiction over the offense being investigated' have held that Congress intended it to mean territorial jurisdiction over the offense—not general jurisdiction over all federal criminal offenses."

Without authorization for the warrant, the issue became one of remedy. The statute provides no recourse for government violations. But an unauthorized warrant still has constitutional ramifications. Warrants issued without jurisdiction are void. And a "warrant that is void from its inception is no warrant at all." Accordingly, the Court found this warrantless search violated the Fourth Amendment.

The next question, then, was whether the good-faith doctrine saved this unconstitutional search. Again, the answer was no. Because this warrant was never authorized by law, it was void at its inception. There "was no warrant at all."  The good-faith doctrine does not apply when there was no warrant. The Court then ordered that the evidence seized from the defendant's home, based on probable cause generated by the unlawful search of his emails, must be suppressed. And that is the Barber decision.

Back to Rule 41. The Court was specific: the Rule does not authorize a magistrate judge to issue warrants to be executed in another district. But now the Supreme Court has moved to expand the reach of Rule 41. This amendment, proposed to Congress by Chief Justice Roberts, would allow magistrate judges to issue a warrant to "hack into and seize data stored on a computer, even if that computer’s actual location 'has been concealed through technical means,'" as described by  The Atlantic (The Supreme Court Expands FBI Hacking Powers). "In other words, under the new rule, a judge in California could approve a warrant allowing federal agents to lawfully hack into a computer without knowing its true location, whether it be New York, Budapest, or one of Jupiter’s moons." This has generated some controversy in Congress, but absent a vote to override the Supreme Court's proposal, the change will take effect December 1.

Thanks to Branden Bell, who litigated this issue on behalf of Mr. Barber.