Thursday, August 31, 2017

Supervised release enhancement declared unconstitutional

Hidden at the end of the statute that empowers district courts to impose a sentence of supervised release after a sentence of imprisonment is an enhancement that can did allow imposition of a life sentence for certain violations of supervised release. That statute, 18 U.S.C. § 3583(k) requires required a district court to impose "not less than five" years imprisonment when the defendant was on supervised release for certain offenses against minors when the government proves the defendant committed one of a number of sex offenses while under that supervision. The maximum sentence you might ask? Life.

Such a danger of a life sentence exists no more. In United States v Haymond, the Tenth Circuit found that portion of the statute unconstitutional. As summarized by the majority:
We conclude that 18 U.S.C. § 3583(k) violates the Fifth and Sixth Amendments because (1) it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and (2) it imposes heightened punishment on sex offenders expressly based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt and for which they may be separately charged, convicted, and punished.
There is also an interesting discussion of sufficiency of evidence as related to evidence of thumbnails in a child pornography case. Although the Court did not reverse on this ground (remember the standard of proof in supervised release revocations is preponderance of the evidence) the discussion is worth your time.

Wednesday, August 30, 2017

Cert Grant Series: What appeal issues are waived with a guilty plea?

As the First Monday in October approaches, we will review some of the cases pending before the Supreme Court. Thus far, the criminal case docket is rather light.

Class v. United States considers whether “a guilty plea inherently waives a defendant's right to challenge the constitutionality of his statute of conviction”. This issue arises from a deep circuit split on whether a constitutional challenge to the statute of conviction survives a plea, or is waived as part of the factual concession.

Which side does our circuit take? The Tenth has held that all non-jurisdictional claims are waived by an unconditional guilty plea, with a "narrow exception" for only "two constitutional claims — due process claims for vindictive prosecution and double jeopardy claims that are evident from the face of the indictment." United States v. DeVaughn, 694 F.3d1141, 1152-53 (10th Cir. 2012) (acknowledging Blackledge v. Perry, 417 U.S. 21 (1974) and Menna v. New York, 423 U.S. 61 (1975)). Thus, Class could expand or change Tenth Circuit law on this issue. 

Of course, a plea agreement with an appellate waiver will probably dash any such challenge, at least in the Tenth Circuit, which has the most restrictive approach to appellate waiver relief among the circuits.

This is set for argument October 4. NACDL and The Innocence Project have filed amici briefs.

-- Melody

Thursday, August 24, 2017

Let's talk about forensic science: week 5

After taking a short break from blogging about forensic science we are back with a story that puts a prior concept we discussed directly into play. Week one of the forensic science blogging introduced the concepts of foundational validity and validity as applied. The news this week gave us a chance to discuss this topic in relation to a new science: rapid DNA testing.

Rapid DNA testing is what it sounds like. A DNA sample can be taken from a suspect and quickly run through a microwave sized machine. That test result can then be compared to CODIS - the combined DNA profile database run by the FBI. Supporters of expanding the testing point to giving law enforcement a tool to quickly determine if a suspect can be linked to prior unsolved crimes.

And this week, those supporters won the day. The Rapid DNA Act was signed into law. But there are concerns about the new law. First, there are a number of privacy concerns related to criminal defendants and those going through the immigration process. Second, this law would change the criteria for what DNA samples are permitted to be uploaded to the CODIS system. This change is summarized as:
The new law updates the DNA Identification Act of 1994 to authorize criminal justice agencies to upload profiles generated using rapid DNA analysis instruments to the Federal Bureau of Investigation's Combined DNA Index System (CODIS). Previously, access to CODIS was restricted to DNA records generated at an accredited crime lab.
But the problem with this change is the second criteria for admission discussed - validity as applied. Because DNA samples were previously submitted only through accredited crime labs, the risk related to contamination and error was reduced. The law requires the FBI to set standards for the administration of the program so today, we don't know the standards for submission. Depending on what the standards are, we could have a risk of officers doing the testing likely in a police department and without the supervision and regulations that a lab would have. Keep an eye out for what standards are set for these cases. And if you get a CODIS case use the discovery process to determine if rapid DNA testing was used and what safeguards were in place when the testing was done. If careful safeguards are not put in the place the credibility of the entire CODIS system is at risk.

Sunday, August 20, 2017

Fourth Amendment Win at the Tenth

Last Thursday, the Tenth Circuit handed down United States v. Nelson, reversing a district court order that denied a motion to suprress. The KCK U.S. Marshal entered a home to arrest Mr. Nelson on a supervised relase warrant. After they had placed Mr. Nelson in custody, they did a sweep of the house, and found "two firearms underneath a pile of clothes on a bed."

Mr. Nelson challenged the search as a violation of Maryland v. Buie, a 1990 Supreme Court opinion which held that,
[T]he Fourth Amendment would permit the protective sweep undertaken here if the searching officer possessed a reasonable belief based on `specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others(internal marks omitted).
Following Buie, here Judge Mortiz wrote, "We vacate the denial based on our conclusion that the searching officer had no basis to reasonably believe that an unknown, dangerous person was hiding in the residence. Nevertheless, we remand for the district court to determine, in the first instance, whether the owner of the residence consented to the search."

This case is quite fact-dependent, but notable for a few reasons. First, the Court held that the government waived a several arguments because they had not been raised below.  Second, the Court rejected the government's curious good faith argument for the obvious reason that  "the Supreme Court has limited [the good-faith] exception to circumstances where someone other than a police officer has made the mistaken determination that resulted in the Fourth Amendment violation.

And third, the Court also took time to address the KCK U.S. Marshal's policy and practice of a "blanket safety rule," conducting a sweep  every time that they enter a residence to make an arrest:
We note that if, as Nelson suggests, the United States Marshals Service for the District of Kansas maintains a practice that systemically ignores the framework set forth in Buie, such a practice would be troubling. As we explained in another case concerning law-enforcement officials in the Kansas City area, “The Fourth Amendment does not sanction automatic searches of an arrestee's home, nor does the fact-intensive question of reasonable suspicion accommodate a policy of automatic protective sweeps.” Hauk, 412 F.3d at 1186. 
Congrats to Dan Hansmeier.

-- Melody

Tuesday, August 15, 2017

Psych experts & sex offenses

Earlier this month, the D.C. Circuit reminded us how important it is in sex cases to present expert mental-health testimony in support of any mental-state (lack of intent) defense.

In United States v. Laureys, the D.C. Circuit granted habeas relief to the defendant after finding that his lawyer was ineffective for failing to present expert testimony in support of his client's fantasy defense to enticement and travel charges.

Emphasizing the "pivotal role" that psychiatry has come to play in criminal proceedings, the Court held that trial counsel unreasonably failed to secure an expert for his client's defense (relying instead on his client's own "lurid" testimony about his "deviant sex fantasies").

The Court described the expert's potential testimony in some detail; this part of the opinion is crucial reading for anyone contemplating a fantasy defense to enticement or similar charges.

Sunday, August 13, 2017

Kansas drug convictions are not career-offender/ACCA predicates

Kansas convictions for selling drugs or possessing drugs with the intent to sell no longer qualify as "controlled substance" offenses under the career-offender guideline, the felon-in-possession guideline, or the ACCA. Kansas convictions for possessing with intent to sell may also not count under the illegal-reentry guideline.

Kansas law has defined a drug "sale" to include an "offer to sell" since the 1970s. This definition of sale appeared in caselaw and the PIK instructions for a long time, and is now part of the statutory definitions applicable to drug crimes. K.S.A. 21-5701(d); K.S.A. 21-5705. (Kansas has replaced the word "sell" with the word "distribute," but we will use the word "sell" here.)

This definition of sale applies whether the defendant is charged with "sale," "offer for sale," or "possession with intent to sell." In other words, three types of drug-trafficking (or "distribution") crimes might be charged in Kansas:

1. A drug sale (defined elsewhere to include an offer to sell);

2. An offer for sale (yes, redundant of #1, but there you have it); or

3. Possessing a drug with intent to sell (defined elsewhere to include an offer to sell). This third crime might include, for instance, fraudulent offers to sell; i.e., possession, intent to offer for sale, but no intent to carry out the sale.*

Last week, in United States v. Madkins, the Tenth Circuit held that none of these crimes may serve as career-offender predicates: "[A] conviction for possession with intent to sell a controlled substance—where sale is defined to include an offer—is broader than the conduct criminalized in § 4B1.2(a) and the authoritative commentary."

What to do after Madkins: 

1. Invoke Madkins to challenge the use of any Kansas drug-sale or possession-with-intent-to-sell convictions as career-offender predicates and any other predicate that cross-references § 4B1.2.

2. Invoke Madkins to challenge the use of these convictions as ACCA predicates (remember, those predicates must also have carried a max prison term of 10 or more years).

3. Invoke Madkins to challenge the use of any Kansas possession-with-intent-to-sell conviction to enhance an unlawful-reentry sentence under § 2L1.2. But note that this guideline is trickier. The commentary defines "drug trafficking offense" in this context to include an "offer to sell" or possession with intent to distribute. Does it cover possession with intent to offer for sale? We don't know, but it's definitely a live issue after Madkins.

*As the Tenth Circuit explained: "It is not difficult to imagine a scenario where a person possesses drugs and offers to sell them without ever intending to complete the transaction. For example, the would-be seller might extend an offer to sell marijuana to a would-be buyer. But the seller never intends to hand over the marijuana—instead, he plans to rob the would-be buyer and abscond with the money. In that situation, the offer would be fraudulent, because the offeror never intended to sell."

Friday, August 11, 2017

We can't stop blogging about this case......

A week a half back we blogged about a pretty crazy case where the Johnson County Sheriff got dressed up in full tactical gear to raid.....a family who was growing some tomatoes in their basement. Uh. Whoops. Sorry?

We would be remiss if we didn't mention another little gem buried in this 100 page opinion. The search warrant (besides the husband/father buying some gardening supplies for their tomatoes) was based on some green leafy vegetation (tea) "field testing" positive for marijuana. To say the Tenth Circuit was not impressed with the "field test" used in this case would be an understatement:

The field tests used by the JCSO, which are expressly identified by the manufacturer as a preliminary tool requiring laboratory confirmation, do not meet this standard of reliability. One study found a 70% false positive rate using this field test, with positive results obtained from substances including vanilla, peppermint, ginger, eucalyptus, cinnamon leaf, basil, thyme, lemon grass, lavender, organic oregano, organic spearmint, organic clove, patchouli, ginseng, a strip of newspaper, and even air. As demonstrated by this litigation, caffeine may now be added to that list. A 70% false positive rate obviously flunks the reliability test.
Yikes! Keep this language in mind for future cases. We all have cases where a field test is important in a warrant or to support further investigation. Remember this little gem when that issue rears its head in the future.

Sunday, August 6, 2017

They risked their lives . . .

. . . to help the government, but then the government refused to help them.

The Tenth Circuit has officially endorsed two approaches when the government refuses to move for a substantial-assistance departure despite your client's best (and risky) efforts. In United States v. John Doe, the Court clarified that your client may have both constitutional and contractual remedies.

First, as the Supreme Court held in Wade v. United States, "federal district courts have authority to review a prosecutor’s refusal to file a substantial-assistance motion and to grant a remedy if . . . the refusal was based on an unconstitutional motive" or "not rationally related to any legitimate government end."

And second, because parties to a contract have a duty to deal in good faith, the district court may review the government's decision not to file the motion for good faith. This review should take a 3-step Batson-like form:

"[A] defendant must first allege that the government acted in bad faith. The government may then rebut that allegation by providing its reasons for refusing to file the motion. Assuming those reasons are at least facially plausible, we hold that a defendant is only entitled to good-faith review if he or she produces evidence giving reason to question the justification the government advanced."

Tuesday, August 1, 2017

Glove-box invasion violates Fourth Amendment

Image result for glove compartment with gun
In United States v. Painter, an unpublished decision released last week, the Ninth Circuit held that law-enforcement officers conducted an unreasonable search when they looked in a driver's glove box after he ran a red light and crashed his car. The officers claimed to be looking for the car registration. But this information was "readily available" elsewhere: by running the license plate or the publicly viewable VIN through the police computers. And even if the VIN had been obscured and the licence plate destroyed in the crash, there was no exigency to excuse the officers from getting a warrant. A solid Fourth Amendment win for the defendant and a reminder that the police may not rely on a need for evidence that they can readily find in a less intrusive manner.