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.”
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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.