"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.

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.
 

"[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."

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."

—Alice Goffman, TED Talks (March 2015).

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.
 

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."

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.

Who's a government entity or agent? NCMEC, for one.

The National Center for Missing and Exploited Children (NCMEC) is both a government entity and a government agent for Fourth Amendment purposes. So says the Tenth Circuit in United States v. Ackerman, rejecting arguments to the contrary not only from the government, but also from amici NCMEC, Dropbox, Facebook, Google, Microsoft, Pinterest, Snapchat, and Twitter.

In Ackerman, AOL’s screening system flagged one of four images attached to an email as probable child pornography. AOL sent the email to NCMEC. NCMEC opened the email and all four images, confirmed that they appeared to be child pornography, determined the likely owner of the account, and sent the information to law enforcement. Thus:

     email--->AOL(filters email)--->NCMEC(opens email)--->law enforcement

Mr. Ackerman was charged with child pornography and moved to suppress the images, arguing that they were the fruit of a warrantless search that was not otherwise reasonable. The district court denied the motion, and the Tenth Circuit reversed.

Did NCMEC take government action when it opened the email and images?

Yes. As noted above, the Tenth Circuit held that NCMEC—which by statute has law enforcement powers "well beyond those enjoyed by private citizens"—is both a government entity and a government agent for Fourth Amendment purposes. The Court examines both the entity and agency questions in great detail, creating a useful primer for future cases. Practice note: Whether an actor is a government entity and whether it is a government agent are two different questions. Be sure to make and preserve both arguments in the district court.

Did NCMEC conduct a search when it opened the email and images?

Maybe,* either under a Katz reasonable-expectation-of-privacy theory (though the Tenth Circuit notes the "open question whether the Supreme Court’s so-called ‘third-party doctrine’ might undermine any claim to Fourth Amendment protections when someone (like Mr. Ackerman) engages a private agent (like AOL) to deliver his correspondence"), or under a Jones trespass theory. (Orin Kerr is not convinced of this latter theory.)

But didn’t NCMEC just repeat what AOL did when AOL screened the email and images?

No, the "private search doctrine" did not save the search here. Under that doctrine, a warrantless search may be saved (or labeled something other than a search) when it merely repeats the reported acts of a private party. Here, NCMEC did more than AOL did. AOL merely used an algorithm to screen one of four images attached to the email. NCMEC opened the email and looked at all four images. This action "exceeded rather than repeated AOL’s private search."

　
*The Tenth Circuit remands for further findings on this question.

Where are all the diversions?

Any idea how many federal defendants successfully completed pretrial diversion in Kansas from 2012-2014?

Five.

And how many should have been at least eligible for diversion?

One hundred and six.

That's according to the Office of the Inspector General, which last month published a diversion audit recommending that the government take steps to strengthen the use of pretrial diversion and diversion-based court programs. The OIG found that "the potential cost savings from increased use of diversion programs could be substantial," and that the "recidivism rate for offenders who completed a diversion program was lower than the general recidivism rate for federal inmates." So why don't we use it more?

Thanks to David Freund for bringing this report to our attention.