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.