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.