Monday, January 30, 2017

The New World of Immigration

With deepest gratitude to David Patton and Isaac Wheeler of the Federal Defenders of New York, borrowed from the Reasonable Doubt blog.
Note: This memorandum is in response to the Executive Order filed Jan. 25, and not the most recent EO banning refugees and Muslims.

President Trump’s executive order titled “Enhancing Public Safety in the Interior of the United States,” signed on Jan. 25, may have significant impacts on non-citizens with open federal criminal cases in the relatively near term. The order is only two days old and does not explicitly withdraw existing agency guidance on most issues it addresses, so it is not clear how soon DHS or DOJ will issue revised guidance to field offices regarding implementation. But federal criminal practitioners should be aware of several aspects of this order that may alter the landscape for noncitizen defendants and should closely monitor their implementation:

1) Some federal defendants who would not have been ICE enforcement priorities before may now be high priorities for removal even pre-conviction. Obama’s DHS Secretary Jeh Johnson issued a 3-tiered system of ICE enforcement priorities in late 2014. Once those took effect in 2015, 98 to 99% of all non-border removals were people who fell under those priorities, with the vast majority falling under levels 1 and 2 (primarily immigrants with convictions). As a result, thousands of ‘just undocumented’ folks or people with only minor records were left alone, even if ICE encountered them in the criminal justice system. The new order does not explicitly withdraw the 2014 memo but includes overarching language suggesting that no-one encountered by ICE need be left alone. (Before, ICE had to determine that a non-priority immigrant’s deportation served an “important federal interest” to deport him or her, and this accounted for only 0.2% of removals in FY2016).

It is important to bear in mind that ICE cannot generally deport people who are currently in valid immigration status (such as green card holders) in the absence of a conviction that falls under one of the specified categories of deportable conduct in the Immigration and Nationality Act. (There are exceptions, including for noncitizens apprehend at ports-of-entry, such as airport courier cases). This order does not change that. But as to those who currently lack valid immigration status or who have status but also already have a conviction that renders them deportable, it defines new and vastly broader enforcement priorities, including:

· Anyone who has been convicted of any “criminal offense” (even one that does not fall under a criminal deportation ground of the INA, such as a traffic misdemeanor). This language appears to apply to past convictions with no statute of limitations, and it is not clear yet whether it applies to dispositions that a state or locality would define as non-criminal (such as N.Y. state violations).
· Anyone who has been charged with any criminal offense, “where such charge has not been resolved.”
· Anyone who has committed conduct that constitutes a chargeable criminal offense (again, possibly including the most minor offense). This also conceivably covers anyone who entered the country illegally, since that is an offense under 8 USC 1325.
· Anyone who has engaged in fraud or willful misrepresentation in connection with an official matter or application to a government agency, or who has “abused” public benefits
· Anyone whom an immigration officer judges to be a risk to public safetyAgain, these expanded priorities apply to people who are “removable,” and not, for example, to a green card holder arrested in the interior who has no prior convictions but has a pending case. Such a person is usually only removable upon conviction.

For clients covered by these expanded priorities, defenders should note that several of the changes may alter ICE and CBP practices when a non-citizen federal defendant is released on bond. In many cases, even if a defendant has an immigration detainer, ICE or CBP will process them upon release from custody but then allow the defendant to stay out under the bond conditions set by the court while the criminal case plays out. It remains to be seen if DHS will interpret the Jan. 25 order as a directive to work at cross-purposes with the U.S. Attorney’s Office by removing clients who are still facing federal prosecution. But for now, when there is a detainer, defense counsel should consult an immigration expert before seeking a client’s release on bond and should consider whether the client would be helped or harmed by being taken into ICE or CBP custody for removal before a criminal case is resolved. And depending on how this provision is interpreted by DHS, clients under pre-trial supervision who currently lack immigration status or who are otherwise removable may wish to consult an immigration expert now about possible defenses to removal, in light of the risk of possible immigration detention. (Clients should only be referred to reputable immigration lawyers with expertise in criminal-immigration removal defense).

Defense counsel should also consider these revised enforcement priorities when counseling a client regarding the effect of a deferred prosecution or the dismissal of a case (especially, but not exclusively, cases regarding document fraud, other frauds on the government, or public benefits), since DHS may interpret the order as a directive to prioritize even clients who are cleared of charges.

2) DOJ and DHS are ordered to identify and report on every federal defendant’s immigration status. Under the rubric of ‘transparency,’ the order directs DHS and DOJ to “collect relevant data” for quarterly reports on all non-citizens in BOP custody and “all aliens incarcerated as federal pre-trial detainees under the supervision of the [Marshals].” That’s not likely to change anything tomorrow, and virtually every deportable non-citizen in BOP custody becomes known to ICE already, but it could mean a closer-to-100% detainer rate at presentments if the Marshals implement this policy even when arresting case agents don’t confer with DHS.

3) Relatedly, the Priority Enforcement Program (“PEP”) Is scrapped and the Secure Communities (“S-Comm”) program is coming back. The Secure Communities program allowed ICE to learn of the arrest of noncitizens by any law enforcement agency via instant sharing of booking fingerprint data and to lodge “detainers” temporarily preventing their release. It was replaced with PEP in 2015 because of widespread criticism of the former program and the refusal of many jurisdictions to comply due to concerns about the legality and constitutionality of immigration detainers issued under S-Comm. Under PEP, ICE continued to receive fingerprint data but supposedly narrowed its criteria for the issuance of detainers. Importantly, in some cases it began to lodge a revised detainer form (I-247N) that only asked criminal authorities to notify ICE of a defendant’s release, not to hold the individual for 48 hours beyond the termination of criminal custody. While immigration advocates dispute claims that PEP meaningfully addressed the problems with the old, legally and constitutionally suspect detainers, S-Comm will now be reinstated, reversing whatever gains PEP represented. For now, if the USAO or USMS claims there is a detainer on a client, defense counsel should demand to see it and should note whether it is an I-247N that does not actually request that the defendant be held for ICE. In addition, detainers issued under PEP explicitly state that they are not meant to affect decisions on the issuance of bond, so subject to the new concerns discussed in Point 1, above, defense counsel should not automatically assume in every case that the existence of a detainer makes release on bond impossible or inadvisable.

4) Other aspects of the order may have significant impacts on noncitizens in the federal criminal justice system in the longer term:

· DOJ is ordered to devote “adequate resources” to the prosecution of immigration-related crimes. Since these already account for 52% of all federal criminal prosecutions, the impact of this directive is unclear, but the President appears to consider this allocation “inadequate”;
· DHS and DOS are ordered to implement authorized sanctions against countries that resist accepting deportees, which could change the outlook for defendants from Cuba, China, Sierra Leone, Vietnam, and other so-called “recalcitrant” countries;
· The broad language in the order directing the enforcement of the law against “all removable aliens” might affect DHS’ use of prosecutorial discretion to benefit federal defendants including cooperators, although again it remains to be seen if DHS will interpret the order as an instruction to work at cross-purposes with other state and federal law enforcement agencies
· Subject to appropriation, the order directs the hiring of 10,000 additional interior enforcement agents (above the large increases in the Border Patrol in the separate border enforcement order). ICE agents might be deemed exempt from the hiring freeze the President has separately ordered as necessary to meet public safety responsibilities, but if immigration judges are not, the already critical overcrowding of immigration courts could become a severe due process problem. (At this writing, detained noncitizens in New York are waiting eight to ten weeks for an initial hearing with an immigration judge).

Several immigration advocacy have already issued preliminary advisories and commentaries on the executive orders (which have helped inform the analysis above). Defense counsel should continue to check back with these organizations (including the National Immigration Project of the National lawyers Guild and the American Immigration Council) and the National Immigrant Justice Center’s Defender Initiative page for continuing guidance.

The impacts of this order on state criminal justice systems may be far more sweeping, and state criminal defense practitioners should watch for an advisory soon from the Immigrant Defense Project.

Isaac Wheeler
Immigration Attorney
Federal Defenders of New York
52 Duane St. 10th Fl.

New York, NY 10007

Sunday, January 29, 2017

Kansas Legal Revitalization Conference

This is a reminder that the Kansas Legal Revitalization Conference is this week, February 1, 2, and 3. The schedule and registration are available at Available to all active District of Kansas federal bar members, it will be held at the Kansas City Marriott, Country Club Plaza, 4445 Main St, Kansas City, MO 64111. The speaker line-up is impressive, eight hours of CLE per day is available, and it is free.

For more information, visit the website or contact

Tuesday, January 24, 2017

No prison time for rehab purposes (Tapia redux)

In Tapia v. United States, the Supreme Court held that federal law prohibits federal judges "from imposing or lengthening a prison term in order to promote a criminal defendant's rehabilitation." That law is at 18 U.S.C. § 3582(a), which states that "imprisonment is not an appropriate means of promoting correction and rehabilitation."

Last week, in United States v. Thornton, the Tenth Circuit clarified the reach of Tapia, making four points:

"First, denials of downward-variance motions are subject to Tapia scrutiny. Second, Tapia error can occur even when a district court articulates additional valid reasons for the prison sentence. Third, a district court need not expressly link a prison sentence to a specific treatment program in order to trigger Tapia error. Fourth, there is no Tapia error when a district court addresses rehabilitation merely to refute an offender’s argument that in-prison treatment justifies a lesser sentence, but there is error when the district court goes further and grounds his sentence, in part, on the perceived benefit to the offender of providing prison-based rehabilitation."
Image result for lucy psychiatric help

Thursday, January 19, 2017

Thank you Obama

Jessie Traylor received a life sentence in 2010 based on his minor role in a conspiracy to distribute cocaine. The life sentence was mandatory because the government enhanced his minimum sentence based on two prior convictions for “felony drug offenses.”

On Tuesday, President Obama changed that. In one of his last acts in office, President Obama commuted Jessie Traylor’s life sentence to 20 years’ imprisonment. The story behind the clemency petition was told recently in the KC Star here and here. And it was also told in the LJWorld here.

In total, President Obama commuted the sentences of 1,715 inmates. That is the most ever for any president. Of those commutations, 568 inmates had a life sentence shortened. A few of the 1,715 commutations were the result of hard work from a number of  volunteers in the District of Kansas (possibly more on those later).
For Jessie Traylor, this work means that Jessie will not have to die in prison. He will get to see his family. He may even get to see his son play professional basketball. He will get another chance at life outside of prison.

Monday, January 16, 2017

The Geek Squad

Are employees of the Best Buy Geek Squad acting as FBI informants? That issue is at the center of United States v. Mark Albert Rittenmaier, (PACER account required), a child pornography prosecution out of the Central District of California.

In 2011 Dr. Mark Rettenmaier could not get his computer to boot up. He took it to the Geek Squad at a Mission Viejo Best Buy store. The Geek Squad informed Dr. Rettenmaier that his hard drive was faulty, and they would need to send it to their data recovery center in Brooks, Kentucky, if he wanted to keep the data on the hard drive. This is rather unremarkable occurrence that probably happens hundreds of times a day.

While a Geek Squad technician was working on the hard drive, he “found” a picture he suspected was child pornography. He then informed his supervisor, who contacted the FBI. Eventually, law enforcement in California obtained a search warrant for Dr. Rettenmaier’s residence, where child pornography was found. He was subsequently indicted in the Central District of California.
Federal law requires Best Buy to alert law enforcement when they find child pornography, so on its face these events don’t appear newsworthy. Through his counsel James Riddet, Dr. Rettenmaier claims the Best Buy technician and his supervisor were working as paid informants for the FBI:

Riddet claims records show "FBI and Best Buy made sure that during the period from 2007 to the present, there was always at least one supervisor who was an active informant." He also said, "The FBI appears to be able to access data at [Best Buy's main repair facility in Brooks, Kentucky] whenever they want." Calling the relationship between the agency and the Geek Squad relevant to pretrial motions, [District Court Judge Cormac] Carney approved Riddet’s request to question agents under oath.

R. Scott Moxley, Best Buy Geek Squad Informant Use Has FBI on Defense in Child-Porn Case, Orange County Register, January 4, 2016. Judge Carney found that eight Geek Squad employees have worked as FBI informants at the Brooks facility.

If true, this could mean the warrantless Geek Squad search was conducted by a government agent, not a private party. As followers of our blog know, absent an exception, a warrant is required when an otherwise private party acts as a government agent when conducting a search.

Rettenmaier also claimed that the FBI had Best Buy conduct subsequent warrantless searches on the hard drive at the Brooks facility before it sought a search warrant, and the government committed a Franks violation by failing to include in the warrant affidavit the initial image was found in unallocated space. In the Ninth Circuit, this is insufficient to support a federal prosecution. See United States v. Flyer, 633 F.3d 911 (9th Cir. 2011). The Tenth Circuit has not yet ruled this issue.
This case was first publicized in the Orange County Register, and later picked up by legal and tech blogs, as well as national publications. Additional coverage from the OC Weekly is available here and here. Search and seizure aficionados should keep their eye on this case.

Thanks to David Freund.

Thursday, January 12, 2017

Pending Supreme Court update: Nelson v. Colorado

On Tuesday, the Supreme Court held oral argument in Nelson v. Colorado, a case asking the question what happens when a defendant pays over money (fine, restitution, etc.) after a conviction BUT that conviction is later overturned on appeal.

You would think that since a person can never get time back - time in jail, time in prison, or time spent on probation - an exonerated person should at least be able to get money back after a conviction is overturned. Instead Colorado says sure, an exonerated defendant can get their money back. All you have to do is file a civil suit where a former defendant now has the burden to prove actual innocence by a clear and convincing evidence standard.

The defendants' claim is that the Fourteenth Amendment's prohibition - “nor shall any State deprive any person of life, liberty, or property, without due process of law” - prevents Colorado from keeping the money and requiring the exonerated person to prove innocence.

It sounds like the oral argument went well for the defendants. Justice Breyer, while trying to decide exactly what the problem was, stated: "there is something wrong with that." The other Justices pounced on counsel for Colorado with hypothetical scenarios involving increasing amounts of money. We shall see how the 8 person Court deals with this issue in the next few months.

Tuesday, January 10, 2017

The Fifth Amendment is not just a trial right

The Fifth Amendment guarantees that no person "shall be compelled in any criminal case to be a witness against himself."
Does it violate the Fifth Amendment when the government uses compelled statements in criminal proceedings other than trial? Yes it does, says the Tenth Circuit, in Vogt v. City of Hays, a case examining whether the use of a compelled statement in a Kansas preliminary hearing was actionable in a Section 1983 case. Here are the relevant holdings:
 "The Fifth Amendment is violated when criminal defendants are compelled to incriminate themselves and the incriminating statement is used in a probable cause hearing."
"[W]e join the Second, Seventh, and Ninth Circuits, concluding that the right against self-incrimination is more than a trial right." 
"We agree . . . that the term 'criminal case' is broader than the term 'criminal prosecution.' Indeed, on its face, the term 'criminal case' appears to encompass all of the proceedings involved in a 'criminal prosecution.'" 
What does this mean in practice? 

It suggests that the government cannot use a compelled (coerced, involuntary, or un-Mirandized) statement in a grand-jury proceeding, at a detention hearing, or in any other proceeding in a criminal case.

Sunday, January 8, 2017

Kansas Legal Revitalization Conference Feb 1-3

Chief Judge Marten has put together an extraordinary conference slated for the first three days of February in Kansas City, Missouri. His committee has worked more than a year in planning this unique and far-ranging program. Judge Marten describes his vision for this conference:
The committee has recruited an exceptional faculty of lawyers and judges, as well as esteemed academicians, artists, business persons, and activists, not all of whom bring any legal training to the table, but each of whom has the ability to make us think about our work and how we approach it.
Here are just a few examples of the sessions and the speakers:

The Prosecution of the 16th Street Baptist Church Bombing, with U.S. Attorney Douglas Jones.

Saving Nelson Mandela, with Kenneth Broun.

Five Broader Questions that 'Making a Murderer' Poses, by Dean Strang.

Forging a More Humane Justice System: The Indispensable Role of Public Defenders in Transforming Our Criminal Justice Culture, Jonathan Rapping of Gideon's Promise.

Police & Community: Section 1983 Litigation, Civilian Oversight, & Implicit Bias, with Judge Nancy Gertner, Judge Julie A. Robinson, and Anne Levinson.

And Dahlia Lithwick from Slate and the Amicus podcast will speak about Law, Religion, and Morality.

Place: Country Club Plaza in Kansas City, Missouri.       
Dates: February 1-3, 2017.
Cost: Free

Register here. After January 10, registration for all three days is open to members of the Kansas federal bar. This is a free conference and priceless opportunity. Please direct any questions to Tim O'Brien, Clerk of the Court for the District of Kansas.

Thursday, January 5, 2017

The President’s Role in Advancing Criminal Justice Reform.

Seems like an important topic - especially with the upcoming change in president and party. Well if you want to read a pretty qualified take on the topic - might we suggest the title of the post - an article in the Harvard Law Review written by our current President (for a few weeks) Barack Obama.

This is not a little short article - Mr. Obama spent some time on this one. A few interesting topics:

(1) The president's role in advancing science in the criminal justice system - it is important to remember that under this President substantial effort has gone into research on some of the accepted forensic methods used in the field. The fruit of that research is yet to be seen. To be fair to Mr. Obama, he puts this in the "work unfinished" category. We blogged on this topic last year.

(2) For the Kansas state practitioners, Mr. Obama mentions the Justice Reinvestment Initiative which was behind many of the largely positive changes in Kansas and other states across the country. Although undertaken at the state level, those efforts were spurred with federal support.

(3) Also mentioned are some failed efforts, including a "Smarter Sentencing Act" that would have increased eligibility for safety valve, reduced mandatory minimums, and removed mandatory life imprisonment for drug crimes. Although supported by a wide range of politicians - from Cory Booker to Ted Cruz, the bill was not even brought to the house floor.

While the future of criminal justice in this country will likely be in significant flux in the next few years, it is interesting to look back on President Obama's take on criminal justice - from his touted changes to his work unfinished.

Wednesday, January 4, 2017

Arrest records may reflect demographics rather than criminality

So says the Third Circuit, reversing a high-end guideline sentence based on the defendant's bare arrest record.

Maximo Mateo-Medina, a Dominican who had long been common-law married to a U.S. citizen, pleaded guilty to reentry after removal. He had two prior convictions (for DUI and passport fraud), and six other arrests. Despite both parties’ recommendation of time served (about six months), the district court sentenced Mr. Mateo-Medina to a year and a day, citing his "extensive" arrest record.

The Third Circuit reversed. The Court agreed with Mr. Mateo-Medina that the district court’s reliance on a bare arrest record to impose a higher sentence violated due process and was plain error. The problem is that, absent further evidence, an arrest does not necessarily indicate criminality (presumption of innocence, anyone?). And it may well simply reflect demographics:

"[R]eliance on arrest records may also exacerbate sentencing disparities arising from economic, social and/or racial factors. For example, officers in affluent neighborhoods may be very reluctant to arrest someone for behavior that would readily cause an officer in the proverbial 'high crime' neighborhood to make an arrest. A record of a prior arrest may, therefore, be as suggestive of a defendant’s demographics as his/her potential for recidivism or his/her past criminality."

The Third Circuit first made this observation in United States v. Berry, 553 F.3d 273 (3d Cir. 2009). In Mateo-Medina, the Court explained that "[s]ince we wrote Berry, substantial research and commentary has only reinforced the regrettable circumstances that we emphasized in disallowing consideration of bare arrest records at sentencing." The Court cited recent studies from the Sentencing Project and criminologists.*

One resource not mentioned by the Third Circuit, but especially relevant to Kansas practitioners is the book Pulled Over, by KU professors Charles Epp, Steven Maynard-Moody, and Donald Haider-Markel. Pulled Over (which was cited by Justice Sotomayor in her Utah v. Strieff dissent) details the results of the authors’ extensive survey of police stops in Wyandotte County. Those results are right in line with the studies discussed in Mateo-Medina: Police contacts may reflect demographics as much as (and sometimes more than) actual criminality.

The same holds true for juvenile police contacts, arrests, and adjudications. See Joshua Rovner, Policy Brief: Disproportionate Minority Contact in the Juvenile System, THE SENTENCING PROJECT (May 2014) (discussing Justice Department data showing that "juvenile justice systems are marked by disparate racial outcomes at every stage of the process").

These are all strong reasons to argue that the "criminal history" of a client within a target demographic may not necessarily reflect that client’s actual criminality (or it may not distinguish that client from other lawbreakers who are not daily targets of police), and that overreliance on the client's history may exacerbate sentencing disparities. This argument should be developed thoroughly in the district court with PSR objections, sentencing memoranda, and even expert testimony.

*The Tenth Circuit has cited Berry favorably, though it has also made it clear that this is an objection that must be well-developed in the district court to get much traction on appeal. See, e.g., United States v. Soto-Arreola, 486 Fed. Appx. 735 (10th Cir. 2012).

Monday, January 2, 2017

What qualifies as a drug conspiracy?

Last week, or rather last year, the Tenth Circuit issued a helpful (though unpublished) decision limiting conspiracies in drug cases, United States v. Bowline. The case is fact-intensive, and concludes, "an agreement between a drug transferor and a drug transferee, standing alone, can't form the basis of such a conspiracy." In Bowline, there was an established conspiracy to possess oxy; but members would  sometimes distribute oxy obtained as part of the possession conspiracy. That, however, did not amount to a "shared common objective" to distribute.The "mere knowledge that Bowline sold or intended to sell at least some of his share of the Oxycodone to others is insufficient, standing alone, to establish a shared distribution objective."        
Further, Bowline distinguishes a mere drug sale between two people from a conspiracy to distribute:
To establish a conspiracy to distribute Oxycodone, the government must prove that two or more people agreed to distribute—i.e., transfer—that drug. And in this case, the government undoubtedly proved that various individuals agreed with Ian Bowline to transfer to him some of the Oxycodone they obtained via the counterfeit prescriptions he created. But an agreement between two people that one will transfer drugs to the other can't form the basis of a conspiracy to distribute; otherwise, every drug sale would constitute a conspiracy. 
Bowline was in the game because he had to feed his habit, not just to profit. Because the common purpose shared by the participants was, in fact, to possess, not to distribute, the evidence supporting the conviction was insufficient. Bowline's convictions were vacated with instructions to dismiss.