Pretrial release: so your client has a drug problem

It happens now and then that our clients struggle with addiction. But you can convert that problem into a reason for pretrial release. First, take your time, obtain an evaluation, and ask your expert to make treatment recommendations. Then access available treatment plans.

Second, pitch the effectiveness of drug treatment. Alternatives to detention “should be recommended” when a defendant “presents a specific risk of pretrial failure that can be addressed by an ATD. For example, a person with a substance abuse problem may be appropriate for drug testing, assessment, or treatment based on their specific situation.” Marie VanNostrand, Pretrial Risk Assessment in the Federal Court, 73 Federal Probation 3, 23 (Sept. 2009).

Drug treatment works. In a landmark publication, the Office of the Surgeon General recently issued a report canvassing addiction in America. U.S. Department of Health and Human Services, Office of the Surgeon General, Facing Addiction in America: The Surgeon General’s Report on Alcohol, Drugs, and Health (Nov. 2016). As the then-Surgeon General explained in his preface to the report, “[w]e . . . need a cultural shift in how we think about addiction. For far too long, too many in our country have viewed addiction as a moral failing. . . . We must help everyone see that addiction is not a character flaw – it is a chronic illness that we must approach with the same skill and compassion with which we approach heart disease, diabetes, and cancer.” Id. at v.

Even “serious substance use disorders can be treated effectively, with recurrence rates equivalent to those of other chronic illnesses such as diabetes, asthma, or hypertension. With comprehensive continuing care, recovery is an achievable outcome.” Id. at 7-5. With treatment, more than “25 million individuals with a previous substance use disorder are estimated to be in remission. Integrated treatment can dramatically improve patient health and quality of life, reduce fatalities, address health disparities, and reduce societal costs that result from unrecognized, unaddressed substance use disorders among patients in the general health care system.” Id.

A carefully prepared pretrial plan might make your client one of these success stories. Use your resources, take your time, and argue the science.

---Kirk Redmond

Pretrial release: the weight of the evidence

How exactly does the weight of the evidence of guilt influence a pretrial release decision? An interesting opinion from the District of Utah recently explored that question.

In United States v. Lizardi-Maldanado, 275 F.Supp.3d 1284, 1292 (D. Utah 2017), Judge Furst concluded that the weight of the evidence is relevant only to the extent that it demonstrates your client will be a danger to the community or a serious risk of flight. She explained that to “avoid falling down the rabbit-hole into the world of ‘[s]entence first—verdict afterwards’  the Court should consider the strength of the evidence only in terms of how that evidence bears on the risk of nonappearance and the risk of harm to the community.” Id. at 1272. And Judge Furst isn’t alone in this view. See, e.g., United States v. Hunt, 240 F.Supp.3d 128, 134 (D. D.C. 2017); United States v. Stone, 608 F.3d 939, 948 (6th Cir. 2010). To obtain detention, the government can’t just assert that the evidence of guilt is strong; it has to link that assertion to the ultimate questions of danger and flight.

---Kirk Redmond

Pretrial release: dealing with the presumption

Thanks to everyone who attended the Kansas FPD’s pretrial release conference in Lawrence last week (and congratulations again, Laura Shaneyfelt). We’re marking the occasion with some posts highlighting issues in pretrial release litigation, and will start by discussing the presumption.

As you know, 18 U.S.C. § 3142(e) creates a presumption of detention in certain cases. When the presumption of detention applies, “the burden of production shifts to the defendant. However, the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government.” United States v. Stricklin, 932 F.2d 1353, 1354-55 (10th Cir. 1991). When the “defendant's burden of production is met, the presumption remains a factor for consideration by the district court in determining whether to release or detain.” Id. This raises two questions:

Can detention be based solely on the presumption?

One of the first Kansas district courts to take a deep dive into the Bail Reform Act responded with an emphatic no. In United States v. Cox, 635 F.Supp. 1047 (D. Kan. 1986), the court found that heavy reliance on the presumption would render the Bail Reform Act unconstitutional. While “the Act’s provisions allowing for pretrial detention are constitutional, that constitutionality is impinged when the government seeks to justify detention solely by virtue of the presumption.” Id. at 1051. Consequently, “the presumption, even unrebutted, is insufficient standing alone to meet the burden of clear and convincing evidence.” Id. at 1052.

How much evidentiary weight should the rebutted presumption carry?

We say none; the research says we’re right. The “presumption does a poor job of assessing risk, especially compared to the results produced by actuarial risk assessment instruments such as the PTRA.” Amaryllis Austin, The Presumption for Detention Statute’s Relationship to Release Rates, 81 Federal Probation 52, 61 (Sep. 2017). The presumption fails to “correctly identify defendants who are most likely to be rearrested for any offense, rearrested for a violent offense, fail to appear, or be revoked for technical violations.” Id. at 60. So when you’ve rebutted the presumption, argue the empirical evidence. Even in cases where the presumption initially applied, that fact tells the court nothing about whether your client is a danger to the community or poses a serious risk of flight.

---Kirk Redmond

"[J]ust a flinch reaction"

It’s fun to attend trial, isn’t it? Just don’t get too caught up in the action.

In Hayes v. Skywest Airlines, Inc., the Tenth Circuit affirmed a summary criminal contempt order against a legal secretary who gestured to a witness for her office’s client not to answer a question during cross-examination by counsel for the opposing party.

The secretary explained both in the district court and on direct appeal that the gesture “was just a flinch reaction.” The district court didn’t believe her, and the Tenth Circuit affirmed, finding that the evidence supported the district court’s determination that the gesture was willful:

“This intentional behavior may have resulted from a momentary lapse in judgment and may have been quickly regretted, but the mere fact that conduct is spur-of-the-moment does not mean it cannot also be willful.”

So the next time you start feeling a bit hopped-up as you watch a trial unfold, be sure to sit on your hands and zip your lips.

"[D]ue process might require a higher standard"

The Tenth Circuit has long held that sentencing facts in the "ordinary case" need only be proven by a preponderance of evidence. United States v. Olsen, 519 F.3d 1096, 1105 (10th Cir. 2008). But the Tenth Circuit has also "reserved the question of whether, in some extraordinary or dramatic case, due process might require a higher standard of proof." Id.

A recent Ninth Circuit decision provides new inspiration to press this argument. In United States v. Valle, the Ninth Circuit held that the government was required to prove the defendant's continuous presence in the United States by clear and convincing evidence before his illegal-reentry guidelines range could be significantly increased under USSG §§ 2L1.1 and 4A1.1.

There are possibly two circuit splits at work here:

First, whether the higher standard ever applies. The Tenth Circuit says "maybe," while the Ninth Circuit says "yes."

Second, when that higher standard applies. The Tenth Circuit says it might apply "in some extraordinary or dramatic case." The Ninth Circuit, in contrast, applies the higher standard to any fact that has "an extremely disproportionate impact on the sentence." This standard may not sound very different from the Tenth Circuit's, but the Tenth Circuit appeared to reject it in Olsen. The standard comes into play in the Ninth Circuit when circumstances favor it, taking into consideration (among other factors) "whether the increase in the number of offense levels is less than or equal to four," and "whether the length of the enhanced sentence more than doubles the length of the sentence authorized by the initial sentencing guideline range in a case where the defendant would otherwise have received a relatively short sentence."

Whether you have an "extraordinary or dramatic case," or just one where a guidelines enhancement has a significant impact, argue that the facts necessary to trigger that enhancement must be proved by clear and convincing evidence.* And let us know what happens.


*Or go all out, and argue that the constitutional protections of due process, notice, and jury factfinding beyond a reasonable doubt apply to facts that (dramatically/significantly) increase the minimum and maximum penalties prescribed by the advisory sentencing guidelines, notwithstanding United States v. Cassius, 777 F.3d 1093 (10th Cir. 2015). See Jones v. United States, 135 S.Ct. 8 (2014) (“any fact necessary to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge”) (Scalia, J., dissenting from denial of certiorari, joined by Thomas, J., and Ginsburg, J.); Gall, 552 U.S. at 60 (Scalia, J., concurring) (“The door remains open for a defendant to demonstrate that his sentence, whether inside or outside the advisory Guidelines range, would not have been upheld but for the existence of a fact found by the sentencing judge and not by the jury.”); United States v. Sabillon-Umana, 772 F.3d 1328, 1331 (10th Cir. 2014) (Gorsuch, J.) (observing that it is “questionable” to assume “that a district judge may either decrease or increase a defendant’s sentence (within the statutorily authorized range) based on facts the judge finds without the aid of a jury or the defendant’s consent. It is far from certain whether the Constitution allows at least the second half of that equation.”); see also Kathryn M. Zainey, The Constitutional Infirmity of the Current Federal Sentencing System: How the Use of Uncharged and Acquitted Conduct to Enhance A Defendant’s Sentence Violates Due Process, 56 Loy. L. Rev. 375 (2010) (arguing that the “process of enhanced sentencing based on uncharged and acquitted conduct is patently unconstitutional, even if the ultimate sentence remains within the statutory range of the offense for which the defendant was originally convicted”).

Tenth Circuit Breviaries

Just one published criminal case from the Tenth Circuit last week:

Sufficiency of evidence of drug dealing

In United States v. Duran, the Tenth Circuit held that the evidence was sufficient to support Mr. Duran's drug-distribution, conspiracy, and telephone-count convictions. The opinion contains an interesting discussion of what evidence will suffice absent controlled purchases or the actual observation of drugs. Here, the evidence consisted primarily of recorded telephone calls, as interpreted by law-enforcement witnesses.

Evidentiary issues

The Duran Court rejected Mr. Duran's relevance, prejudice, hearsay, and foundational challenges to law-enforcement testimony about his involvement in previous controlled buys.

The Court further rejected Mr. Duran's opinion, hearsay, and prejudice challenges to an officer's lay interpretation of code words on the recorded telephone calls, reminding us that "[l]aw-enforcement agents can ordinarily testify that the defendants were engaged in drug trafficking because this testimony constitutes opinion evidence on a fact issue." And the Court held that an agent's expert interpretation of the code words was also properly admitted.

2nd Cir: Guidelines sentence in terrorism case inadequately explained

In United States v. Pugh, 937 F.3d 108 (2nd Cir. 2019), the defendant was convicted of attempting to provide material support to a foreign terrorist organization (by attempting to join ISIS) and obstruction of justice (by destroying USB drives and data). The guidelines range was 360 to 420 months. The district court imposed consecutive statutory-maximum sentences on each count, 180 months on the material support conviction and 240 months for obstruction, for a total of 420 months--a guidelines sentence. The 2nd Circuit affirmed the convictions but vacated the sentence, finding that the district court had not adequately explained it. A district court generally need not give a lengthy explanation for a guidelines sentence. And the court made two pages of comments prior to imposing the sentence. But, the 2nd Circuit says, most of the discussion was about the defendant's guilt, not the appropriate sentence. The panel emphasizes that the defendant was convicted of multiple counts and the sentencing judge did not articulate why an already lengthy statutory-maximum sentence on one count was not sufficient, before imposing consecutive statutory-maximum sentences. Because of the procedural error, the panel did not reach the issue of substantive reasonableness.

Judge Calabresi concurred, to highlight how the government was able to use an obstruction of justice conviction to more than double the available sentence. The concurrence explains that a sentence for obstruction must reflect the seriousness of the obstruction conduct. It should not be used to punish conduct underlying a different count, because the government or the court is dissatisfied with the statutory maximum on the other count. This discussion hints, if reimposed, the sentence may be substantively unreasonable as well. Or, at least, one judge may think so.

Tenth Circuit Breviaries

Last week at the Tenth Circuit . . .

USSG § 4B1.2(b)

A "counterfeit substance" under this guideline is a noncontrolled substance that is passed off as a controlled substance. It is not a controlled substance that has been fraudulently or without authorization mislabeled or misbranded. So declared the Tenth Circuit, joining the five other circuits to have addressed this issue, in United States v. Thomas.

Plurality opinions

What’s the mandate of a plurality opinion when “two of the three panel judges share some common rationale, yet ultimately reach different outcomes, and a different combination of two judges reach a common outcome by using different rationales”? It's the outcome that matters, says Harte v. Johnson County Board Comm'rs, round two of a Fourth Amendment lawsuit that we've blogged about before.

Jury-selection issues

Read Harte also for a reminder of how hard it is to win jury-selection claims on appeal. When it comes to juror bias, for instance, "the deference due to district courts is at its pinnacle." And Batson claims have always been an uphill battle on appeal, and a losing battle in this case.

Confession without corroboration is insufficient proof of guilt

The Seventh Circuit reminds us that “It is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused.” In this 18 U.S.C. § 924(a)(1) case, the defendant confessed to two ATF agents that he lied to a firearms dealer by stating that he was buying two firearms for himself, when he was really purchasing them for someone else. At trial, the government presented the testimony of one of the ATF agents who heard the confession. The Seventh Circuit found there was insufficient proof of guilt because there was no independent evidence corroborating the confession. The defendant even confessed twice. But, says the court, “the government cannot rely on a second uncorroborated confession as independent evidence corroborating an initial one, particularly where the second does nothing to fortify the truth of the confession by offering further corroboration that a crime was committed.”