Sunday, March 29, 2020

The CARES Act & federal criminal defendants

What’s in the CARES Act for people facing federal criminal charges?

Section 15002 of the Act includes emergency provisions that will allow our clients to waive their physical appearance and consent to appear by video teleconferencing or telephone conferencing for the following proceedings:
  • initial appearance
  • arraignment
  • detention hearing
  • preliminary hearing
  • waiver of indictment
  • Rule 40 appearance
  • misdemeanor plea and sentencing
  • probation/supervised release revocation proceedings (including pretrial release)
  • some juvenile proceedings
  • felony plea (“if the judge in a particular case finds for specific reasons that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of justice”)
  • felony sentencing (ditto the above findings requirement)
  • juvenile plea, sentencing, or disposition (ditto the above findings requirement)

Is this effective immediately?

No, it will only come into effect upon (1) certain findings by the Judicial Conference of the United States, followed by (2) certain findings by your local district court. Check your local district court's website over the next few days.

Does my client have a say in this?

The Act states that “[v]ideo teleconferencing or telephone conferencing authorized [by the bill] may only take place with the consent of the defendant, or the juvenile, after consultation with counsel.”

How long does this thing last?

Either 30 days after the date on which the national emergency declared by the President terminates, or until the Judicial Conference says so.

In the meantime, the Act provides for the local district court to review and determine whether to extend the authorization every 90 days.

Thursday, March 26, 2020

Acquiescence to authority is not consent

In United States v. Pedicini, the Sixth Circuit recently emphasized the distinction between acquiescence to authority and consent to search. A highway patrol trooper pulled over Pedicini for driving in the bike lane. After asking Pedicini to get out of the car, the trooper asked if had any weapons and if he could pat him down. Pedicini did not verbally respond, but extended his arms and asked why he was being patted down and if he was in trouble. The trooper explained that he wanted to search for weapons, asked if Pedicini would mind a patdown, asked if he had any sharp objects, then listed several possible sharp objects. Pedicini then nodded his head and the trooper patted him down and found a gun. But, the Sixth Circuit said, it was unclear what Pedicini was nodding to. "What is clear from this exchange is Pedicini’s consistent confusion and reluctance to be searched as indicated by his repeated questions even while acquiescing to the Trooper." The court noted that non-verbal actions can constitute consent, but not if they are merely "acquiescence to a claim of lawful authority." The court found Pedicini's actions did not constitute voluntary consent, and reversed the district court's contrary findings.

Sunday, March 22, 2020

Tenth Circuit Breviaries

We're finally catching up on Tenth Circuit criminal cases decided in the last few weeks:

Fourth Amendment/Fifth Amendment due process

In United States v. Wagner, the Tenth Circuit held that information that an internet user had accessed child pornography six months ago was not too stale to support a search warrant for the residence associated with the user's IP address. The Court also rejected Mr. Wagner's particularity challenge to the warrant.

The Wagner Court also held that even if a magistrate's earlier NIT warrant for Playpen's servers was invalid (for various reasons), FBI agents executed the warrant in good faith (reaffirming Workman). And the agents' operation of the Playpen child-pornography website did not rise to the level of outrageous governmental conduct necessary to support dismissal of the indictment.

Fifth Amendment right against self-incrimination

More from Wagner: the FBI's interview of Mr. Wagner during execution of the search warrant at his house was noncustodial, and his statements to the agents were voluntary. So concluded the Tenth Circuit.

Exclusion of hearsay/motion for new trial

Trial practitioners take note: In Wagner, trial counsel (1) unsuccessfully sought to cross-examine a government witness about out-of-court statements that had previously been admitted (the district court sustained the government's hearsay objection); and then counsel (2) unsuccessfully moved for a new trial after Mr. Wagner's conviction, arguing in part that the district court's restriction of his cross-examination violated his due-process rights. This was preserved trial error. And it was argued as trial error on appeal. And yet the Tenth Circuit analyzed it as an appeal from the district court's denial of the motion for new trial--triggering a tougher appellate standard, which the Tenth Circuit held Mr. Wagner did not meet. Would he have been in better appellate shape had he not moved for a new trial?

Discuss amongst yourselves.

Sufficiency of evidence of child pornography

Finally in Wagner, the Tenth Circuit held that the evidence was sufficient to prove that Mr. Wagner knowingly received and possessed child pornography.

Sufficiency of evidence of obstruction of justice/attempt to kill witness

In United States v. Chatman, the Tenth Circuit reversed Mr. Chatman's conviction for attempting to kill a witness as well an accompanying 18 U.S.C. 924(c) conviction. Given the unique facts suggesting frustration, retaliation, or attempted "suicide-by-cop," the government failed to prove that Mr. Chatman's exchange of gunfire with a police officer was intended to prevent the officer from communicating the possible commission of a federal offense (Mr. Chatman's unlawful gun possession) to a federal officer or judge.

8 U.S.C. 1326: unlawful reentry

In United States v. Lira-Ramirez, the Tenth Circuit considered newly unearthed statutory history, but ultimately stood by its earlier decisions holding that notices to appear for removal proceedings are not jurisdictional; consequently, an unlawful reentry conviction may be predicated on an earlier removal that followed from a defective notice to appear.

Pleas and magistrate judges

Do magistrate judges have authority to accept guilty pleas and adjudicate the defendant guilty of a felony if the parties consent? Yes (and even if they didn't, that limit would not implicate jurisdiction), according to the Tenth Circuit in United States v. Finnesy.

Tuesday, March 17, 2020

Day 3: FPD COVID-19 Statement

In response to increasing COVID-19 concerns, the Federal Public Defender believes that our highest obligation to our clients is to slow the spread of the pandemic. We have taken precautionary measures that we describe below. And we are appreciative to the federal district court for suspending all non-emergency hearings, including jury trials and grand jury proceedings, and allowing for some appearances by video.

Our primary concern now: the spread of COVID-19 in the jails. We need to stop the flow of people into the jails, and where possible reduce the population. This is beyond dispute: keeping people in jail presents a grave danger to public health, both for those in custody and for jail personnel, who return to the public and to their own families every day. Jails are incubators for COVID-19. Once it takes hold inside the walls, the virus will quickly travel back into the community.

The Bail Reform Act authorizes judicial officers to order temporary release for a “compelling reason.” 18 U.S.C. §3142(i). Nothing could be more compelling than this public health crisis. We expect the landscape on this front—within the pretrial holding facilities—to change rapidly. Soon we will ask the court to consider release of medically vulnerable or compromised clients or to expedite the release of those who were slated for release in the next few months.

Thank you to the United States Marshal Service for sharing information about jail COVID-19 policies. BOP advises “admission of new inmates will continue,” so the health of the detainees will directly affect the health of the BOP population. We ask the Marshal to take these steps:

§  require all facilities who contract with the USMS to daily publish (effective today, March 17, 2020) the number of people—both detainees and personnel—who have:

                        screened or tested positive for COVID-19 symptoms;
                                    tested positive for COVID-19;
                                    been isolated or quarantined within the facility; or
                                    been hospitalized outside the facility.

§  refrain from serving outstanding arrest warrants unless there is an imminent risk of violence;

§  refuse to house any person in USMS custody in a facility that has not implemented adequate precautionary measures to slow the spread of the contagion, identify those at risk of infection, and properly treat those at risk:

       this should include, at a minimum, that the facility provide free soap, alcohol-                     based hand sanitizer, disinfectant, and masks;
             it should also include effective individual isolation within the facility, and anyone              who must be quarantined should be removed to a hospital.

§  require each facility to provide or allow installation of adequate video-conferencing capability for attorney-client visitation.
Likewise, we appreciate the U.S. Attorney’s caution in going forward. Besides the measures already taken, we ask the USAO to:

§  suspend or discourage arrests for offenses that do not involve an imminent risk of violence;

§  where immediate action is necessary, proceed by summons rather than by arrest; each arrest increases exponentially the number of people subject to exposure, including law enforcement;

§  where pretrial detention is at issue, rethink the criteria for recommending detention or house arrest, and consider recommending fewer conditions to protect probation officers from unnecessary risk;

§  consider temporary release or house arrest for those currently in custody who are at high risk because of compromised immune systems, age, or other medical vulnerability; and

§  do not obtain or review any recorded detainee communication, including email, phone, and videoconferencing.

The FPD continues to closely monitor our clients’ circumstances. We have gone to full-time mandatory remote work; closed our physical offices, with one duty attorney at each courthouse; and suspended in-person jail visitation (except for emergencies). We are working on new ways to safely communicate with our clients who remain in custody.

The measures already implemented and those requested above are critical to public health. It is no longer a question of just protecting ourselves, but protecting others who are at risk, including our indigent clients in custody, courthouse staff (including janitorial services), courthouse security, jail and law enforcement personnel, attorneys, and the court.

Sunday, March 15, 2020

FPD and COVID-19

In response to COVID-19, the FPD is temporarily changing how we work. Please be assured that we are still working—as long as our clients are in jail or under prosecution, we will work. Our immediate responsibility—everyone’s immediate responsibility—is to slow the spread of the contagion, to flatten the curve. 

So for the next few weeks, we will work remotely. Our physical offices are closed. Most court hearings are delayed. Phone messages and email will be monitored, but may not be answered immediately. We will continue to communicate with our clients and tend to business, even if business is delayed. We will closely review and monitor the well being of our clients in custody, those who are most vulnerable and with the least control over their own lives. We are ready to fight for their release to protect their health.  
Our contact information is available on Please call or email as needed. And everyone, please take care of yourselves and each other.

Wednesday, March 11, 2020

COVID-19 Captives

As the number of people diagnosed with the coronavirus starts to creep up in states around the country, fears are rightfully sparking about the impact of this outbreak on a critically vulnerable group of people: those incarcerated in our jails and prisons. The danger of infection is high in these crowded, unsanitary facilities—and the risk for people inside and outside of them is exacerbated by the “churn” of people being admitted and released at high rates.

        Many detention facilities, including CoreCivic, have refused to say how − or whether − they intend to protect our clients from COVID-19. From inside, we hear that they have provided little to no meaningful guidance or directives, and few protective resources (like hand sanitizer). These facilities owe the people in their custody, their families, and their visitors candid answers about how they are managing COVID-19 concerns.
     David Patton, the federal defender in Southern/ Eastern District of New York, issued this statement:
The Federal Defenders of New York calls on the BOP and each institution in New York City housing federal detainees to make public its plans and policies for preventing a coronavirus outbreak and responding to detained people who contract coronavirus. At a minimum, those plans and policies should include:
1. A comprehensive testing protocol;
2. Much greater precautionary measures with respect to sanitation and hygiene, including frequent cleaning and ready availability of soap and tissues (the opposite of what is occurring at the MCC right now);

3. A provision for quarantining anyone who tests positive for the coronavirus at a hospital, not at the jail;
4. A provision that the jails not be locked down or closed off to outsiders or considered in their entirety as places of “quarantine”, and permitting lawyers and family members access to their clients and loved ones;
5. Coordination with the Courts and U.S. Attorneys’ Offices to ensure that only in extraordinary circumstances should any new arrestee be detained at the jails, and no one should be admitted without testing.
Likewise, fifteen Democratic senators have demanded action from BOP and private facilities, including CoreCivic, by March 16, 2020:

Given the spread of the virus in the U.S.—and the particular vulnerability of the prison population and correctional staff—it is critical that [you] have a plan to help prevent the spread of the novel coronavirus to incarcerated individuals and correctional staff, along with their families and loved ones, and provide treatment to incarcerated individuals and staff who become infected.

            The Kansas Federal Public Defender joins these demands, and specifically calls on CoreCivic and other pretrial facilities to publish their COVID-19 plans and policies. This is not meant to be alarmist or opportunistic. And, here, we are not even talking about the constitutional implications of this crisis on those in custody.  These requests—for medical care and prescribed precautions, for information and transparency−are a matter of public health, institutional responsibility, and human decency. Until these questions are answered, perhaps we should rethink who we force into these unsafe conditions. Again from Slate:

A hallmark of incarceration is that it strips people of autonomy and self-determination; a medical outbreak of this proportion shines a harsh light on the real-life effects of that deprivation. . . . We must take responsibility for the crisis of mass incarceration we have created, which is now also a massive public health crisis waiting to happen. Prosecutors can stop seeking detention in many cases; judges can stop incarcerating people at the outset; and courts, politicians, and parole commissions can begin to release people who are already incarcerated.

-- Melody

Sunday, March 8, 2020

Times they are a-changin': e-Discovery

Image result for bob dylan times are changing
The times they are a-changing
, no matter how much some people (you know who you are) want to cling to 2-hole punches, hide in bankers boxes, and nurse paper cuts. We receive and manage discovery electronically now. Here are three ways to cope with these a-changin' times.

First: A new mandatory rule of federal rule is in effect, Rule 16.1:

(a) Discovery Conference. No later than 14 days after the arraignment, the attorney for the government and the defendant's attorney must confer and try to agree on a timetable and procedures for pretrial disclosure under Rule 16.

(b) Request for Court Action. After the discovery conference, one or both parties may ask the court to determine or modify the time, place, manner, or other aspects of disclosure to facilitate preparation for trial.

The District of Kansas Pretrial Criminal Case Management Order (with specific ESI directives) is filed in every criminal case. The order encourages the parties to meet and confer before the status conference, which is generally set about 45 days after arraignment. The new Rule, however, requires us to meet and confer within 14 days. The Kansas FPD has developed a checklist to comply with Rule 16.1 and the district’s general order.

“Then you better start swimmin’
Or you’ll sink like a stone
For the times they are a-changin’”

Second: Once you get discovery, what do you do with it? It is encrypted, in an unrecognizable format, and needs its own hard drive. How do you even open it? We have answers. The FPD Spring CLE will focus on managing and reviewing e-Discovery. Two years ago, we had a hands-on training with National Litigation Support Team, and they are back for an encore performance in Wichita on April 16 and in Lawrence on April 17, 2020.  To register, contact

“Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled.”

Third: Now you have the discovery promised at the Rule 16.1 conference. You know how to read it because you attended the e-Discovery CLE. And you realize that it is a discovery dump that does not include the critical information that should be there. Time to litigate. One of the best sources is the Department of Justice’s own manual. It gives prosecutors detailed direction, including “Where to look: The Prosecution Team” (“Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.”); “What to Review” (the investigative agency’s files, snitch files, Giglio, and so forth); and Making Disclosures; and guidance on disclosure of electronic communications. This is a wealth of good information.

“Come writers and critics
Who prophesies with your pen
And keep your eyes wide
The chance won’t come again
 . . . . .
For the times they are a-changin’”

-- Melody

Follow the Kansas FPD on Twitter: @FedDefenderKS

Thursday, March 5, 2020

Selective prosecution in Hobbs Act robbery cases

In news of creative defense litigation, in United States v. Coley, the Ohio Federal Public Defender has been litigating a motion to dismiss an indictment on the basis of race-based selective prosecution. The claim is that federal prosecutors are indicting only black defendants on Hobbs Act robbery charges in federal court, while leaving similarly situated white robbery defendants in state court. United States v. Armstrong sets forth the (very high) standards for a selective-prosecution claim.

To pursue the claim, the FPD notes that 25 cases of Hobbs Act robbery have been brought in the division between 2013 and 2017: 24 defendants were black, 1 was Hispanic, and none were white. The FPD subpoenaed state court presentence reports of robbery defendants, in order to show that white defendants with similar histories to the federal defendants were not prosecuted in federal court. The state judges objected to producing the documents, arguing that they were irrelevant and confidential. The United States pushed for the setting of a trial date.  

In January, the district court issued two orders that are worth a look. First, the court overruled the state judges' motion to quash the subpoenas for the PSRs. United States v. Coley, 2020 WL 373984 (N.D. Ohio Jan. 16, 2020). The court found that Coley's need for the documents outweighed any objections to producing them. Shortly thereafter, the court denied the United States' motion to set a trial date. The court noted: "The outcome of this case is important to the public - and its importance goes far beyond wanting a speedy trial and timely verdict. It is more important that the public have confidence that the government and those who work with and for it are race-blind. In the end, this case is about whether, in this instance, that confidence is merited."

Sunday, March 1, 2020

Tenth Circuit Breviaries

From the last two weeks at the Tenth Circuit:

911 calls & present sense impressions

In United States v. Lovato, the Tenth Circuit found no error in the district court's admission of a 911 call at the defendant's trial as a present sense impression under Fed. R. Evid. 803(1). Read Lovato for a detailed application of this rule.

Cooperators & public access to court records

The District of Utah has a local rule requiring that all plea agreements include a sealed supplement stating whether or not the defendant cooperated with authorities. The purpose of the rule is to protect cooperators. The thinking is that if there's a sealed document in every case with a plea agreement, nobody can tell who cooperated and who didn't.

Two problems with this approach.

First, not everybody is going to get the memo. That is, absent knowledge of the local rule, not everybody who looks at a docket sheet is going to understand that this defendant's sealed supplement is not meaningful.

Second, the application of this rule across the board, without case-specific findings, violates the common-law right of public access to judicial records. This right applies to the details of a defendant's plea bargain. And it is "fundamental to the democratic state."

So held the Tenth Circuit in United States v. Bacon, reversing the district court's refusal to unseal a non-cooperating defendant's plea supplement.

Juveniles & life sentences

In Rainer v. Hansen, the Tenth Circuit held that a combination of release opportunities that would arise between the ages of 42 and 60 for a defendant sentenced to 112 years' imprisonment for nonhomicide crimes committed when he was 17 years old satisfied Graham v. Florida's requirement that juveniles given life sentences have some meaningful opportunity for release.