Thursday, December 28, 2017

Offer to sell is still not a controlled substance offense

Back in August we told you that a prior Kansas drug offense that can be committed through an offer to sell does not qualify as a controlled substance offense under § 4B1.2(b).

Well, ditto for Colorado. Today the Tenth Circuit held, in United States v. McKibbon that because Colorado § 18-18-405 may be violated through an offer to sell, it is categorical broader than
§ 4B1.2(b)'s definition of a controlled substance offense.

Wednesday, December 27, 2017

Profile evidence: "inherently prejudicial"

The rule seems clear enough: "Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait." Fed. R. Evid. 404(a)(1).

And yet the battle rages on over whether and when the government may present expert profile evidence in a criminal case. The Ninth Circuit weighed in earlier this month in United States v. Wells with a resounding NEVER when its purpose is to prove substantive evidence of guilt.
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Wells covers a lot of profiler ground, and is a must-read for any lawyer faced with the admission of this sort of evidence. Bottom line: The use of this evidence to prove guilt violates Rules 404(a)(1) and 403:

"As we have explained, testimony of this nature is "inherently prejudicial," has no place as substantive evidence of guilt, and would therefore fail Rule 403’s balancing test."

Wednesday, December 20, 2017

"Protective sweep" suppressed

Earlier this week, the Tenth Circuit held, in United States v. Bagley, that a protective sweep of a house in which police had no articulable suspicion that a dangerous person was inside violated the Fourth Amendment.

The Marshals had a warrant for Mr. Bagley's arrest. And they found him in a house. The only people they knew were in the house was Mr. Bagley, his girlfriend, and her children. The Marshals were able to get all of them out of the house without incident. But instead of simply arresting Mr. Bagley and bringing him in, the Marshals engaged in what they claimed was a protective sweep, which resulted in the discovery of two rounds of ammunition and some marijuana. They used that information to obtain a search warrant which resulted in the discovery of a gun.

The government claimed the Buie exception that allows a protective sweep applied to justify the initial discovery of ammo and marijuana. The Court rejected that argument, holding that a lack of knowledge if anyone is in the house does not suffice to support the required articulable suspicion of a dangerous person.

Tuesday, December 19, 2017

Taking detention decisions seriously

Yesterday, the Tenth Circuit undid a second detention order in as many months. As we blogged about earlier, last month in United States v. Ailon-Ailon, the Court vacated an illegal-reentry defendant's detention order after holding that the risk of involuntary removal by ICE does not establish a risk of flight under the Bail Reform Act.

In United States v. Mobley, the Tenth Circuit sent back an international-parental-kidnapping defendant's detention order after finding it flawed in two ways:

First, the district court rested its detention order on its finding that the defendant posed a flight risk without considering whether any release conditions would assure her appearance at trial.

Second, the district court failed to take into account the defendant's proposed affirmative defense when considering the nature of the offense.

We already know that pretrial detention increases our clients' exposure to conviction, longer sentences, and recidivism. Thanks to the Tenth Circuit's enforcement of the Bail Reform Act, now we have a few more tools with which to fight that detention.

Thursday, December 14, 2017

1) Read the whole PSR; 2) Object

It is certainly important to make sure our client's offense level and criminal history is calculated correctly. Keeping clients sentence to a minimum is a fundamental part of criminal defense. But it doesn't end there. Once our clients are released from prison, they are subject to a term of supervised release. And sometimes the conditions of that supervised release make our clients life extremely difficult - even worse some of those conditions should have never been imposed in the first place.

Mr. Cohee's attorney failed to object to one such condition. And as a result of that, Mr. Cohee can't have any contact with his own children. Because the Court reviewed the condition on a plain error standard Mr. Cohee lost and can't see his own child, even though he alleged a violation of his constitutional right to familial association. Review all of the conditions of supervised release. Object.

Tuesday, December 12, 2017

Holistic lawyering: not just for defense lawyers anymore

Every year:

Nearly 650,000 people are released from prison.

Over 11,000,000 people are released from jail.

The vast majority (about 95%) of people who go into prison or jail are going to come out at some point and return to our communities. Who is going to help them find housing, transportation, work, health care, debt management, and other services---the necessary prerequisites to successful reintegration?

Prosecutors, that's who. This according to a new report by the NYU Center on the Administration of Criminal Law. In Disrupting the Cycle: Reimagining the Prosecutor's Role in Reentry, the Center identifies reintegration as a public-safety issue that is squarely in the realm of the prosecutorial function:
The best result for public safety is for the criminal justice system to refrain from over-incarceration at the front end and, at the back end to put individuals who have been incarcerated in a position to thrive when they return to their communities.
In other words, prosecutors should get out of the mindset of "catching bad guys and locking them up," and start focusing on recidivism and reentry.

The report offers strong reasons for prosecutors to take reentry into account at the "front end" of a case when making decisions and recommendations regarding charging, pretrial release (including conditions of release), diversion, and other alternatives to incarceration.

And at the "back end" of a case, opportunities abound for prosecutors to assist releasees either individually or systemically by making available basic living requirements, promoting expungement opportunities, and collaborating with probation officers, employers, and community resource providers.

Read this report; get inspired by its research and examples; send a copy to your favorite prosecutor; and then work with that prosecutor to promote your client's speedy and successful reentry---as a public-safety project that everyone can get behind.  

Sunday, December 10, 2017

Cert Grant Series: For the Bikers.

Collins v. Virginia is about a motorcycle. One that was covered, parked in an enclosed area of a driveway right next to a house, and then searched without a warrant, pursuant to the “automobile exception.”
Image result

The facts distill to this: the cops thought that Ryan Collins had eluded them on a couple of high-speed motorcycle chases, but they couldn’t be sure. They went to a ranch-style house where Ryan stayed. The house had a driveway that led through the front yard and then beside the house. The police saw a motorcycle covered in a white “tarp” (see below) parked in the driveway, behind a car and beside the house. “This portion of the driveway was enclosed on three sides: the home on one side, a brick retaining wall on the opposite side, and a brick wall in the back.”

You know the rest of this hackneyed story. Without permission and without a warrant, the police walk into the driveway, remove the cover to get the tag and VIN, and the bike comes back stolen. When Collins was charged with possession of a stolen motorcycle, he challenged the search.  

Not a problem, said the Supreme Court of Virginia. The police did not need a warrant because the automobile exception applies to any “readily mobile” vehicle. But Collins argues that the Supreme Court has always stopped short of “applying that rule on private, residential property.” Furthermore, if “police can search a car wherever they find it with no warrant, this Court’s protection of the curtilage will lose much of its value.” 

The question presented:

Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

This is not a case about probable cause (that was assumed) or about whether lifting the motorcycle cover was a search (it was). The case juxtaposes the privacy expectations in an automobile with the privacy and property rights within the curtilage of the home. Virginia focused only on the former. Collins argues that both privacy and property interests protected the covered motorcycle from a warrantless search because it  was parked, and covered, within the curtilege of the house. Those interests in the house should control this inquiry.

The Tenth Circuit, by the way, acknowledges that the automobile exception “‘may not apply when [a vehicle] is parked at the residence of the criminal defendant challenging the constitutionality of the search.’” United States v. DeJear, 552 F.3d 1196, 1202 (10th Cir. 2009).

Image result for zen and the art of motorcycle maintenance pdf

That this was a motorcycle should not matter, warns the American Motorcyclists Association. The AMA amicus brief, more philosophy than law, invokes Marlon Brando in The Wild One and quotes Zen and the Art of Motorcycle Maintenance to argue, first, there is nothing inherently suspicious about owning or using a motorcycle; and, second, it was a motorcycle cover, not a tarp, as it was mistakenly described below, and those covers serve lawful purposes: to protect against elements, for privacy, and to guard against theft. Removing the cover was intruding into the vehicle, like opening a car door. “When the police removed the cover from Petitioners’ motorcycle, a search occurred.”

Collins is set for argument January 9, 2018.

Thursday, December 7, 2017

This is what "substantial interference" with a defense witness looks like

Has your defense witness suddenly taken the Fifth after receiving a warning from the prosecutor? You might want to find out exactly what the prosecutor said. Because if the prosecutor "assertive[ly]" threatened to make trouble for your witness if he so much as testified (whether or not he committed perjury), that warning just might be a Sixth Amendment violation.

Such was the case in United States v. Orozco, in which Chief District Judge Robinson (Kansas) vacated the defendant's convictions post-trial and dismissed his charges with prejudice: "While a limited warning of consequences for committing perjury is proper, a warning of consequences for simply taking the witness stand crosses the boundary line into improper witness interference." Dismissal with prejudice was necessary here because the prosecutor acted in bad faith and her interference prejudiced the defendant in several ways.

Sunday, December 3, 2017

Cert Grant Series: “If this is the law, nobody is safe.”

On its face, United States v. Marinello is about mens rea: Can one be convicted of obstructing the IRS if they are unaware that the IRS is conducting an investigation? In practice, though, this case is really about prosecutorial abuse of power, which is attracted when a criminal statute reaches innocent conduct. The dissenting judges in the Second Circuit recognized this danger: “Prosecutorial power is not just the power to convict those we are sure have guilty minds; it is also the power to destroy people.”

The statute, 26 USC § 7212(a), allows prosecution of one who “in any . . . way corruptly or by force . . . endeavors to obstruct or impede the due administration” of the IRS. The Second Circuit, where this case originated, does not require that the defendant know of an IRS investigation. It does not require contemporaneity of the obstructive act and IRS investigation. It does not even require that the act obstruct a particular investigation. As Mr. Marinello argues, the statute is “a general prohibition on conduct that hinders the IRS in any way."

The facts are that Mr. Marinello ran a rather sketchy business in upstate New York: he was a poor bookkeeper, paid employees cash, did not keep bank statements or business records, and, well, didn’t always file tax returns. These activities spanned 1992 to 2010. The IRS investigation began, unbeknownst to him, in 2009. Eventually he was prosecuted for his bad business style, and convicted for obstructing an IRS investigation when he did not know there was an IRS investigation.

SCOTUS granted cert on this question:

Whether § 7212(a)’s residual clause requires that there was a pending IRS action or proceeding, such as an investigation or audit, of which the defendant was aware when he engaged in the purportedly obstructive conduct.

A circuit split arises from the more reasonable Sixth Circuit, which reads into the statute a saving mens rea requirement. The First, Second, Ninth and, yes, Tenth fall on the wrong side of this divide. See United States v. Sorensen, 801 F.3d 1217 (10th Cir. 2015).

Two Second Circuit judges issued a powerful dissent from the denial of en banc review, with a scathing indictment of the panel opinion. Some choice quotes:

The panel “cleared a garden path for prosecutorial abuse.”

How easy it is under the panel's opinion for an overzealous or partisan prosecutor to investigate, to threaten, to force into pleading, or perhaps (with luck) to convict anybody.

The statute “affords the sort of capacious, unbounded, and oppressive opportunity for prosecutorial abuse that the Supreme Court has repeatedly curtailed.”

The panel had misconstrued the statute as “a prosecutor’s hammer that can be brought 
down upon any citizen,” rather than as a “specialized tool” to prevent obstruction of “active IRS investigations.”

The dissent, “decline[d] to defer to the Department of Justice’s views to determine the scope of a criminal statute.”

And, “If this is the law, no one is safe.

The case will be argued this Wednesday, December 6, 2017.

Tuesday, November 28, 2017

Racial profiling is illegal in Kansas: now what?

Kansas law prohibits law-enforcement officers from using race or other prohibited factors when deciding whether to conduct a stop, arrest, or search. K.S.A. 22-4606, et seq.

Last month, the Kansas Supreme Court held in State v. Gray, 403 P.3d 1220 (Kan. 2017), that suppression is an appopriate remedy in state court for an officer's violation of this law. This is a must-read case for all Kansas state practitioners.

But how can this state law help our federal clients? The Supreme Court has held that violations of state law do not by themselves render a search or seizure unreasonable for Fourth Amendment purposes. See Virginia v. Moore, 553 U.S. 164 (2008). But a violation of Kansas's anti-profiling law might be decent fodder for cross-examining an officer who claims to be well trained and respectful of a client's legal rights.

Even better, violations of Kansas's anti-profiling law might render an officer's conduct flagrant for purposes of an attenuation analysis under Utah v. Strieff, 136 S.Ct. 2056 (2016). As we recently blogged, the discovery of an arrest warrant after an illegal stop will not remove the taint of a stop that resulted from racial profiling.

How else can we call upon this law to help our clients? Let us know your thoughts. The Kansas legislature did a righteous thing by adopting an anti-profiling law. Let's do our part to see that the law is enforced.

Sunday, November 26, 2017

Risk of flight must be volitional under Bail Reform Act: "A defendant is not barred from release because he is a deportable alien."

An immigration "detainer" in effect at the time of an initial appearance in federal court is not enough, standing alone, to justify detention under the Bail Reform Act, according to a ground-breaking Tenth Circuit decision published last week. In United States v. Ailon-Ailon, the Court held that the risk of removal by ICE is not the same as a risk that the defendant will flee. This was an issue of first impression in this circuit.

Mr. Ailon-Ailon is charged with an immigration offense in the District of Kansas. The government moved to keep him in custody because an immigration detainer had been filed with the U.S. Marshal. That detainer was actually a form from ICE asking to take custody of the defendant if he were released from federal custody because he was (allegedly) subject to a reinstated deportation order.

The district court detained Mr. Ailon-Ailon based on a risk of flight. That is, the court determined that removal by immigration posed "a serious risk that such person will flee," a determinative factor under 18 U.S.C. § 3142(f)(2).

The Tenth Circuit reversed. "We conclude that the plain meaning of 'flee' refers to a volitional act rather than involuntary removal, and that the structure of the Bail Reform Act supports this plain-text reading." The Court observed, "As Ailon-Ailon noted at oral argument, one would not describe an individual who has been arrested at a crime scene and involuntarily transported to a police station as having fled the  scene." The government argued, unconvincingly, that it had no control over whether or when ICE would deport; the Court held that any fight over which federal agency has priority is for the Executive Branch to resolve.
Image result for tug-of-war cartoon federal agency
The remedy was not a remand for further hearing on whether Mr. Ailon-Ailon should be released, but a directive to the lower court "to set appropriate conditions for Ailon-Ailon’s release pending trial. When the conditions of release have been met, the United States Marshals shall release Ailon-Ailon to ICE custody, pursuant to the detainer."

-- Melody

Sunday, November 19, 2017

Cert Grant Series: Partying with the Justices

District of Columbia v. Wesby presents two Fourth Amendment issues arising from a fun and possibly wild party at an apparently vacant house. Police arrived (who invited them?) finding, among other entertainment, “scantily clad women with money tucked into garter belts” and "used contraceptives strewn about." Some attendees indicated the host, "Peaches", was not present. Police eventually identified the lawful property owner (Peaches' landlord, as luck would have it) who disowned the partygoers.

All attendees, including Mr. Wesby, were arrested for trespassing. They then sued the police for wrongful arrest (no probable cause) and lack of qualified immunity.

The questions presented are:

Do officers have probable cause to arrest for unlawful entry under D.C. law despite a claim of good-faith entry? and 

Was the law sufficiently clearly established to justify the denial of immunity to the officers?

Image result for image Justice Kagan
Going to a different kind of party. 
So far, the lower courts have been partiers, ruling in Mr. Wesby's favor on both questions. And it appears that SCOTUS wants to be invited to the party, too. At oral argument, Justice Sotomayor jumped right in, noting that when she is invited to a party, "I don't ask to look at their lease." And it appears that Justice Kagan may feel protective of "reasonable partygoers," noting, "there are these parties that, once long ago, I used to be invited to -- -- where you didn't -- don't know the host, but you know Joe is having a party." And then, "And can I say that long, long ago, marijuana was maybe present at those parties? And, you know, so -- and, you know, it just is not obvious that the reasonable partygoer is supposed to walk into this apartment and say: Got to get out of here. And -- and it seems a little bit hard that they're subject to arrest."

Justice Sotomayor closed by asking Petitioner's counsel, "Twenty one people en masse arrested for trespassing for going to a party. Does that feel right?"

Party on, Mr. Wesby? We will see.

Thanks to Oyez for the transcript.

Decision below at 765 F.3d 13 (8th Cir. 2016).
Cert. granted Jan. 19, 2017

Tuesday, November 14, 2017

Tenth Circuit in session this week

The Tenth Circuit is hearing arguments this week in a host of criminal cases. For details, follow the November 2017 Argument Calendar link on our website.

In addition to, you guessed it, quite a few predicate-offense issues, the Court is hearing arguments on other sentencing issues, trial issues, and quite a few interesting Fourth Amendment issues as well. Check out our Issues Pending link if you want to follow any or all of the issues currently pending in the Circuit; use the case numbers to find the briefs on PACER and learn what others are arguing in cases like yours. And let us know if you find this resource useful.
Image result for tenth circuit oral argument

Tuesday, November 7, 2017

Brady: Not just a jury trial right

Looking for persuasive authority that the district court can grant your Brady motion for information related to a motion to suppress or dismiss? Check out footnote 10, buried deeply within United States v. Wells, a Tenth Circuit case decided last month.

Mr. Wells and his codefendant were convicted of misdemeanor trespassing for operating ATVs on federal land closed by the Bureau of Land Management for that purpose during a land-use protest. On appeal, they argued (among other things) that the district court should have granted them a new trial based on their Brady claim that the government failed to disclose a right-of-way map that they could have used to negate the legality of BLM's closure order.

The Tenth Circuit rejected this argument, holding that the evidence was not material to the claimed defense. On the way to that holding, the Court declined to adopt the government's position "that evidence relevant to a ruling made by a judge—as opposed to a factual finding made by a jury—cannot, as a categorical matter, constitute Brady material":

"Under the circumstances of this case, we are not persuaded by the government's argument, though we need not definitively opine on the matter. . . . [T]he government . . . offers no legal authority to support its underlying premise—viz., that a Brady claim cannot be based on a piece of evidence that could only affect a question to be decided by the court rather than the jury—and we have not unearthed any. For example, can it truly be said that such evidence can never, as a categorical matter, engender 'a reasonable probability that the result of the proceeding would have been different'? Reese, 745 F.3d at 1083. It is enough for us to note that, in light of the government's scant presentation here, we may assume that Defendants-Appellants could make a Brady argument based on the suppression of evidence pertinent to an R.S. 2477 defense in a criminal prosecution."

Thursday, November 2, 2017

Hobbs Act robbery is not a crime of violence under Career Offender Guideline

Remember when we kept blogging about robbery and crimes of violence? Well, we are back to that again. Earlier this week in United States v. O'Connor, the 10th Circuit held that a robbery conviction that can be committed through threats to property is: (1) not generic robbery, and (2) not the new guideline definition of extortion. As the Court explained:
In both instances, we conclude that because Hobbs Act robbery includes threats to property, it is broader than both generic robbery and Guidelines extortion, which are limited to threats to a person. Hobbs Act robbery is therefore not categorically a crime of violence under the enumerated offense clause. 
The case is a good reminder to always read the commentary to the Guidelines. In the August 1, 2016 changes to the Career Offender Guideline (which also removes the residual clause and moved some enumerated offenses from the commentary to the Guideline itself) the commission created a new, narrow definition of extortion. If the generic definition of extortion would have remained instead of the narrower definition, most likely Mr. O'Connor's conviction would have been affirmed (see: United States v. Castillo). 

Thursday, October 26, 2017

Use of stingray device violates 4th Amendment when used without a warrant.

This blog hasn't been short on discussing a device that mimics a cell phone tower, but also tracks a person and obtains information from their phone. We discussed prior opinions related to this stingray technology in the federal circuits, where courts were faced with the intersection of these devices and the 4th Amendment, but ruled on other grounds.

Last month, the D.C. Court of Appeals took this issue on headfirst, ruling that the use of this device without a warrant violated the 4th Amendment. The court took a strong line on privacy and cell phones, holding that ruling otherwise "would also place an individual in the difficult position either of accepting the risk that at any moment his or her cellphone could be converted into tracking device or of forgoing ―necessary use of‖ the cellphone." 

The court concluded that allowing such a search without a warrant would violate an individuals "actual, legitimate, and reasonable expectation of privacy in his or her location information and is a search."

There is a good discussion of Katz and the oft-made government argument that using a cell phone holds the information out to the public which is adverse to an expectation of privacy claim. Describing the distinction as a probabilistic one (whether the public thinks it is likely the government could access the information) v. a normative one (whether our history and tradition says the government should have access to this information).

Wednesday, October 25, 2017

Block that sex-crimes testimony!

What could go wrong during a sex-crimes trial? All kinds of things, from the admission of other, uncharged bad sex acts to therapist testimony bolstering the complainant's credibility to prosecutorial misconduct.

And now we have one more case to help us explain to the judge why these errors should not be allowed. In United States v. Preston, the Ninth Circuit reversed two convictions for aggravated sexual abuse of a child because of cumulative error. Read this case if you're preparing for a sex-crimes trial.

Sunday, October 22, 2017

Cert Grant Series: And Now From Kansas . . .

Last Monday, the Supreme Court granted cert in a case arising from a 2011 marijuana trafficking prosecution in Kansas City, Kansas, tried before Judge Vratil. Brothers Los Rovell Dahda and Roosevelt Dahda asked the Court to consider this question:
Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction. 
The wiretap orders in Dahda authorized the interception of communication outside of Kansas, beyond the issuing magistrate's jurisdiction. Trial counsel unsuccessfully moved to suppress the wiretap evidence.

On appeal, the Tenth Circuit disagreed with the district court and found that the T-3 order was facially insufficient as it authorized interception of communication outside of the court's jurisdiction. But the Circuit still refused to grant relief. Instead, the Tenth Circuit read into the statute another condition: a facially insufficient order must implicate "core concerns" of Title 3--privacy and uniformity--to justify suppressing the evidence.

The  circuits are divided on this extra-statutory condition. The statute says nothing about core concerns or exceptions to the statutory suppression remedy. The Tenth Circuit decision is here.

The cert petition, filed by counsel of record at Williams & Connolly LLP in D.C., is here. Oral argument has not yet been scheduled.

Thursday, October 19, 2017

Let's talk about forensic science: week 6

After a short hiatus, it is again time to talk about forensic science. But this time less on the science and more on some practical motion/trial strategy. For those of us who have had examples of suggestive identification (a recent local example exists), only to have a judge tell us it is an issue for the jury, the process is frustrating. Luckily forensic science can help! For years courts have simply relied on the good judgment of juries to determine if someone is telling the truth or not. But  the problem of misidentification is that the witness believes they are telling the truth, but has made a mistake. So what do we do?

The forensic science exits to support a remedy from judges. A summary of the science is provided in State v. Henderson, a New Jersey Supreme Court opinion that went to great lengths (appointing a special master and all) to flush out the science in this area. Also a byproduct of DNA exonerations is that we now can isolate causes of wrongful convictions. And misidentification is the clear leading cause of wrongful convictions. Justice Sotomayor has a strong dissent in Perry v. New Hampshire that should give us some comfort that courts may soon turn in the right direction.

But what are the remedies that are available? Again, Henderson is instructive. We should still start with suppression and focus on the problem with relying on juries - the body of science that shows people are not as good as identifying people as they believe they are - who are left to determine someone is telling the truth when that person doesn't understand their flawed thinking. But we should also be looking for experts in the field to testify. Those experts can guide the court on suppression as well as testifying at trial if needed. And jury instructions are essential. Such instructions should probably be given at the time the identification is introduced AND in the final jury instructions packet. While the cases we read seem to close the door on getting a remedy for a suggestive procedure, it is time that courts catch up with the science.

Sunday, October 15, 2017

Tenth Circuit to hold special session in Topeka on October 26

We have a new feature on our website. As Tenth Circuit oral argument sessions approach, we will post a summary of the issues pending in each criminal case to be argued. You can access this summary from the main page of our website, just below our more detailed document summarizing all issues currently pending before the Circuit in criminal and postconviction appeals (see image below).

Up next is a special argument session in Topeka, Kansas on October 26, 2017, at the Robinson Moot Courtroom at Washburn Law School. Start time is 9:00 a.m. It will be a great opportunity to see the Court in action (and with an all-female panel) via Judges Briscoe, McHugh, and Moritz.

Thursday, October 12, 2017

Cert petition gets to the intersection of the 2nd and 4th Amendments.

There is a clear move in this country towards an expansion of 2nd Amendment rights. But at the same time 4th Amendment protections seem to be going the other direction. What happens when these two trends intersect?

That question is at the heart of a cert petition before the Supreme Court. In United States v. Robinson the court may decide to consider:

Whether, or under what circumstances, in a state that permits residents to legally carry firearms while in public, an officer's belief that a person is armed allows the officers to infer for purposes of a Terry v. Ohio search that the person is “presently dangerous.”
Below, the 4th Circuit determined that all that was required was for the officer "reasonably suspect that the person was armed." But, as the Petitioner points out, Terry seems to require more - either reasonable suspicion that the person committed or is about to commit a crime, or evidence that the person is armed and presents a present danger.

Because Kansas is such a state with expanded gun rights, we should be raising this issue and keeping an eye on this interesting petition.

Wednesday, October 11, 2017

Racial profiling leads to suppression

Lamar, Missouri, a small town in Southwest Missouri (pop. 4,532, per the 2010 census), is known as the birthplace of President Harry S. Truman. Scholars credit Truman with being the first president after Lincoln to address racial inequality in America. He desegregated the military after a civil rights commission he established published a report titled "To Secure These Rights" ("We need to guarantee the same rights to every person regardless of who he is, where he lives, or what his racial, religious or national origins are.").

Related imageOn or around March 20, 2016, there was a robbery in Lamar. A local sheriff's deputy knew that the police department was "looking for a black or Hispanic male in his early twenties" in connection with the crime. Weeks later, on April 9, 2016, the deputy saw a man walking down the street and suspected that he might be the robber, "because there are not a lot of younger black or Hispanic males in Lamar."*

The deputy stopped the man, discovered that he had two active warrants out of Oklahoma, arrested him, and searched his belongings, finding drug paraphernalia and a gun. The man was charged in federal court with transporting a firearm, and moved to suppress the evidence. Earlier this summer, a magistrate held a hearing and recommended suppression. Last week, the district court adopted the magistrate's recommendation. The case is United States v. Hernandez, No. 16-05031-01-CR-SW-MDH,2017 WL 4391713 (W.D. Mo. July 25, 2017), adopted in full at 2017 WL 4401635 (W.D. Mo. Oct. 2, 2017), and it's a good one to keep in your suppression toolkit.

After emphasizing that "[r]ace alone is not sufficient to create reasonable suspicion," the court held that the discovery of the warrants did not purge the stop of its illegality even under the attenuation doctrine as applied in Strieff. The third prong of the attenuation doctrine asks about the flagrancy of law enforcement's misconduct. The officers in Strieff were merely negligent. But here the deputy's conduct "in stopping and seizing Defendant, with nothing more suspicious than the color of Defendant's skin, amounts to racial profiling."

And so go forth, and be not afraid to call racial profiling what it is.

*According to the 2010 census, 86 Hispanics or Latinos and 31 African Americans live in Lamar.

Sunday, October 8, 2017

Cert Grant Series: Football and Rental Car Searches

Football and beer and . . . . standing. The police suspect that some football fans may drink, and sobriety checkpoints tend to pop up close to stadiums (or stadia, for those of you care) around game time. Cars get searched, without warrants, without probable cause, or even without reasonable suspicion. Then it becomes really important who made it to the Super Bowl that year, as the cert petition in Byrd v. United States explains. 

The Byrd petition couched the circuit split in these terms--football attendees have different Fourth Amendment protections based on which teams made the Super Bowl that year. In some circuits, such as the Third where Byrd originates, a rental-car driver stopped at one of those checkpoints cannot challenge the search unless she is an authorized driver on the rental car agreement, even if  1) she is licensed, 2) has the renter's permission to drive, and 3) the renter is present in the car.  In other circuits, like the Ninth, where Arizona hosted Super Bowl 49,  it is a different story. 

This circuit split caught the Supreme Court's interest, and it wants to answer this question:
Does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement?
Image result for rental car search by policeWe see this most often in interstate drug-interdiction 'traffic' stops. And we care about this question because the Tenth Circuit is on the wrong side of the split: "[A]n unlisted driver does not have a reasonable expectation of privacy in a rental car because he does not have the rental company’s permission to operate the car." United States v. Obregon, 748 F.2d 1371, 1374–75 (10th Cir. 1984). 

Oral argument is not yet scheduled.

Cert brought to you by the Federal Public Defender in MDPa.

-- Melody

Tuesday, October 3, 2017

Clean Slate Clearinghouse

Want to help a client expunge a record in Utah, Virginia, or Guam, but don't know where to start? The Council of State Governments (with help from a number of other organizations and agencies) has just launched the Clean Slate Clearinghouse to help support juvenile and adult criminal-record clearance around the country. The Clearinghouse's stated goals are:

•Providing people with criminal records and non-legal service providers with accurate, up-to-date information on record clearance and mitigation as well as contact information for legal service providers in all U.S. states and territories;

•Supporting legal service providers currently engaged in record clearance work and giving new legal service providers the tools and resources they need to develop record clearance programs; and
•Giving policymakers the information they need to compare their state’s record clearance policies to those of other states and to learn about best practices.

Check it out, and spread the word.

Image result for clean slate

Wednesday, September 27, 2017

Does Stingray (cell-site simulator) use = a search?

A cell-site simulator poses as a cellphone tower and tricks a targeted cellphone into connecting with it instead of with a tower. Law enforcement officers might use a cell-site simulator to locate and track suspects associated with a particular cellphone. This is different from asking the phone company to disclose either real-time or historical cellphone data; this is direct government surveillance.

And that is why the D.C. Court of Appeals held last week that the use of a cell-site simulator to locate or track a suspect is a search for Fourth Amendment purposes, and ordinarily requires a warrant. The majority, concurring, and dissenting opinions of Jones v. United States are all well worth reading for a thorough examination of this issue, how it differs from other cellphone issues (such as the one before SCOTUS this term), and what other courts have held with respect to this and related issues.

Sunday, September 17, 2017

Cert Grant Series: Another Void-for-Vagueness Question

First up on the October 2, 2017, oral argument docket is Sessions v. Dimaya. SCOTUS granted the government's cert request on this issue:
Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.
That is a short question with deep ramifications. Dimaya is an immigration case, but the statute at issue, 18 USC § 16, is the general definition of  "crime of violence" for the federal criminal code. Subsection (b) includes this definition: any felony that, by its nature, "involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 

For comparison,  remember Johnson v. United States, a 2015 SCOTUS case that held a similar definitional phrase unconstitutionally vague: a felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another.” Johnson's invalidation of this residual clause of the Armed Career Criminal Act triggered an earthquake in retroactive litigation. Of course, that was reduced to tremors with Beckles, which refused to find the (essentially) same phrase vague in context of the sentencing guidelines. A favorable decision in Dimaya may cause the ground to shift again, or at least clarify the Court's vagueness doctrine.  

Dimaya might sound familiar. Last term, this same case was styled Lynch v. Dimaya (oh, how much changed with that name). It was first argued January 17, 2017, but then SCOTUS set it for reargument on October 2, presumably because the Court had deadlocked at 4-4. It appears that Justice Gorsuch will be the tiebreaker. 
-- Melody

Thursday, September 14, 2017

Cert Grant Series: Warrants and Cell Phone Records

Merely turning on a cell phone creates a record. That record, which can be vast as we all keep our cell phones turned on all the time, is stored by our cell phone providers. Do you have a privacy interest in those records? Or can the police just obtain your records to track your movements without your consent, without your knowledge, and without a warrant?

Those issues present SCOTUS with another opportunity to update Fourth Amendment law to fit with present-day technology. Carpenter v. United States asks if a warrant is required to obtain historical cell phone records that revealed the location and movement of a cell phone. This is framed as a doctrinal challenge to whether third parties--such as cell phone companies--may voluntarily share digital information information with law enforcement.

The facts, in brief, are that law enforcement obtained several months worth of historical cell phone records from Mr. Carpenter's cell phone service provider (the third party) without a warrant. This information tracked Mr. Carpenter's cell phone and placed him (or, at least, his cell phone) in the vicinity of a string of robberies. This data was created by merely carrying, not using, an active cell phone. The government did not have a warrant but relied on statutory authority derived from the Stored Communications Act of 1986. The government argues that the defendant has no ownership interest in records provided by the third party cellphone service provider, and there is no Fourth Amendment protection because the records do not reveal the content of his calls.

Carpenter argues that the volume and precision of the data calls for a different analysis than, say, bank records. A cell phone user has little knowledge or control over the information produced as a result of having a cell phone. The Electronic Frontier Foundation has filed an amicus brief that provides data on the breadth and depth of information provided by cell phones, cell cites, and cell towers.

This presents a different issue than either United States v. Jones, 132 S.Ct. 945 (2012) (tracking the movements of a defendant based on information provided by a GPS device attached to his car is a search under the Fourth Amendment and will generally require a warrant) or Riley v. California, 134 S.Ct. 2473 (2014) (officers must generally obtain a warrant before searching the content of a lawfully seized cell phone). Here the Court may find law enforcement's activities less intrusive than Jones or Riley; a lessened expectation of privacy would allow a third party to release the records without a warrant.

On the other hand, Professor Orin Kerr argues that the third-party argument is in the "wrong doctrinal box." Instead, he compares this to the eyewitness rule: "If the Supreme Court sticks with the eyewitness rule, Carpenter v. United States is an easy case. Cellphone companies are eyewitnesses." Either way, the Court needs to confront the Fourth Amendment question in contemporary terms.

Note: Following Riley, the Tenth Circuit requires a warrant before law enforcement may search cell phone content.

Thanks to Scotusblog for the links.

-- Melody

Sunday, September 10, 2017

Stash House Sting Cases – Relaxing the Standard on Discovery

Several decades ago, law enforcement agents perceived a rise in robberies at “stash houses” so they began to conduct “reverse sting” operations. The idea being that persons at a “stash houses” were particularly vulnerable to being robbed because they traded in cash and would be unwilling to involve law enforcement due to the illegal nature of activity at these houses. A “stash house” may sound like an official or menacing term, but it is simply law enforcement nomenclature for a place where items (drugs, cash, etc.) of the drug trade are kept.

Courts have long been suspicious of these types of sting operations. As the Tenth Circuit noted in Quinn v. Young, 780 F.3d 998, 1008 (10th Cir. 2015), “sting operations present unique questions relating to suspect culpability, particularly regarding the question of intent.” The Ninth Circuit boldly acknowledged the “troubling aspects” of a reverse sting designed “to find and arrest crews engaging in violent robberies of drug stash houses,” including “[t]he risk inherent in targeting ... a generalized population.” UnitedStates v. Black, 733 F.3d 294, 298 (9th Cir. 2013) ("The Black cases arise from a profoundly disturbing use of government power that directly imperils some of our most fundamental constitutional values.").

Empirical data showed that the “generalized population” most commonly targeted in these operations were racial minorities. But the rub for defense lawyers has been discovering any information about “selective prosecution” or “selective enforcement” by the government. That has been true because of two Supreme Court cases in particular that placed the hurdle higher than any particular defendant has been able to clear. In United States v. Armstrong, 517 U.S. 456 (1996) and United States v.Bass, 536 U.S. 862 (2002) (per curiam), the Supreme Court held that to obtain discovery, a defendant had the burden to present “some evidence” of discriminatory effect and discriminatory intent of the government action, and the defendant’s showing must be credible and cannot generally be satisfied with nationwide statistics.

Two weeks ago, the Third Circuit in United States v. Washington, No. 16-2795(Aug. 28, 2017) took on this standard, noting that “Armstrong/Bass has proven to be a demanding gatekeeper,” and that “the lived experience, … has resembled less a challenge and more a rout, as practical and logistical hurdles abound – especially proving a negative.” If you represent a defendant charged as a result of a stash house sting, Washington is worth your time to read.

Relying upon the logic of a Seventh Circuit opinion in United States v. Davis, 793 F.3d 712 (7th Cir. 2015), the Third Circuit noted in Washington the difference between law enforcement and prosecution. In other words, the decision a prosecutor may make about who to charge is different than the decision of law enforcement on who to target. In the latter instance, “there are likely to be no records of similarly situated individuals who were not arrested or investigated – would transform the functional impossibility of Armstrong/Bass into a complete impossibility.” The Third Circuit determined that motions for discovery seeking information on putative claims of unconstitutional selective enforcement are not governed by the strict application of the Armstrong/Bass framework. Rather, a defendant who raises a claim of selective law enforcement may rely upon a proffer that shows some evidence of discriminatory effect, including reliable statistical evidence, and need not show some evidence at the initial stage of discriminatory intent.

Washington thus relaxed the legal standard for defendants seeking discovery from law enforcement agencies. It is, of course, not binding law in this Circuit. And Tenth Circuit precedent may not be helpful to these claims. In 2006, the Tenth Circuit in United States v. Alcaraz-Arellano, 441 F.3d 1252 (10th Cir. 2006) found that to establish a discriminatory effect in a selective prosecution race case the claimant must show that similarly-situated individuals of a different race were not prosecuted,” and that “the elements are essentially the same for a selective enforcement claim.” But as the Third and Seventh Circuits have recently shown, the lived experiences of these stash house sting operations has been to foreclose any possibility that defendants can acquire the basic information in discovery to even raise the claim. In light of these cases, and Washington in particular, defense lawyers now have new authority to rely upon to aggressively seek discovery of discriminatory practices in stash house sting operations. 

-- Rich Federico

Wednesday, September 6, 2017

We know what you did last summer . . .

. . . and we sure are grateful. THANK YOU to our summer interns David (Stanford), Doretta (UMKC), Miranda (KU), Rachel (CUNY) and Will (Washburn)!

It was wonderful to have fresh ideas and energy in the office (not to mention on the Chaos Muppets kickball team!). We appreciate your persistence in chasing down authority and drafting (and redrafting) legal arguments and blogposts. Most of all, we love your curiosity about our work and concern for our clients.

A big THANK YOU as well to everyone in the community who contributed to the intern program: CJA counsel, judges, justices, and everyone else who took time to speak with the interns and open your office, courtroom, chambers, prison, or laboratory. We could not have provided such a well-rounded internship without you.

As for David, Doretta, Miranda, Rachel, and Will: We miss you already, and we can't wait to see what you do next!


Monday, September 4, 2017

Fun with Numbers

The new USSC Federal Sentencing Statistics Sourcebook is out with sentencing stats from 2016. The data wonks in the Kansas FPD are happily playing with the new numbers. Here are some highlights:

  • About 35% of cases nationally were disposed of without a plea agreement (Table 1). In the Tenth Circuit, the number rises to about 67% and falls in the District of Kansas to less than 20% (roughly adjusted for trials). 
  • Racially and ethnically, the number of minority defendants sentenced is still alarmingly disparate, with 20.4% black, 53.3% Hispanic, and 22.3% white (Table 4).  The numbers are even worse in drug cases (Table 34).
  • Trial rates: only 2.7% of cases went to trial nationally; even less in the Circuit at 1.1%. Kansas scored higher with 4.1% (Table10). 
  •  Government sponsored below-range sentences: 28.2% (Table N); non-government sponsored below-range sentences: 20.8% (Table N). So almost half of sentences imposed nationally are below the guideline range, one way or another.  
  •  50%: that’s the median percent decrease from the guideline minimum for 5K1.1 departures. 
  • Meth is still the dominant drug at 33.5%; powder cocaine follows at 19.7%, marijuana at 17.9%, and heroin gaining at 14.3%. Crack cocaine has fallen to 8% (Figure K), but is still punished more harshly than any other drug except meth (Figure J). 
  •  Nationally, the government appealed only 21 sentences. That’s right, 21 (Table 56A).  Nationally. When considered with the appellate waivers ceded by defendants, this means the government has considerable power in shaping sentencing law.
  •  Yet the reversal rate of the Tenth Circuit on sentencing issues is 14.3% (Table 56), compared to 3.9% in 2011. That’s quite a jump.
These statistics are helpful in many ways. Say, for example, you are asking for a BGV variance from 108 months in a firearms case. With USSC data, you can explain that the median sentence for a firearms case nationally is 51 months and the mean is 75 months (Table 13). The numbers are further granulated to specific criminal history categories (Table 14). This may inform the court where your requested sentence falls in relation to sentences imposed by other courts. By comparing the same statistics from other years, you can also track the trend of sentencing for a particular offense (see Figure L).


-- Melody