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Updated: 1 hour 32 min ago

The FIRST STEP Act & compassionate release

Thu, 01/10/2019 - 17:55
By Rich Federico, AFPD
We previously highlighted (here, here) some of the important reforms enacted in the First Step Act of 2018, passed in December by the last Congress. Another noteworthy change are the amendments to the compassionate release statute. In making these reforms, Congress provided greater opportunity for defense attorneys and families to help clients and loved ones who may be eligible for compassionate release. As explained below, the new law allows clients to bring their own motions before a federal judge to seek compassionate release, and the new law establishes notice and assistance requirements for the Bureau of Prisons.

In 1984, Congress authorized compassionate release under the criteria found in 18 U.S.C. § 3582(c)(1)(A). In short, the BOP played the ministerial role and had to bring the motion on behalf of the inmate to explain the “extraordinary and compelling reasons” for a sentence reduction. Congress delegated to the Sentencing Commission to define what “extraordinary and compelling reasons” meant, and the Commission obliged by issuing a policy statement found in § 1B1.13. Most common was that BOP would only bring a motion if an inmate was diagnosed with a “terminal illness,” which the Commission defined as “a serious and advanced illness with an end of life trajectory,” though the “probability of death within a specified time period is not required.”  
BOP’s track record in compassionate release cases was poor. A Human Rights Watch report found that BOP filed very few petitions, leaving judges with only rare opportunities to determine whether compassionate release was warranted. The Campaign for Compassionate Release (here) found that the sick and the elderly have the lowest rates of recidivism, but also cost the most to keep incarcerated. Also, from 2014 to 2018, 81 families watched a loved one die in prison while their compassionate release request went unanswered by the BOP. Finally, according to a report by the Marshall Project, between 2013 and 2017, BOP approved only 6% of the 5,400 applications it received for compassionate release. Of those applicants, 266 died in custody; half of the 266 who died were convicted of nonviolent crimes.

With the passage of the First Step Act, Congress made two important changes to the law.
First, BOP is no longer is the sole movant for compassionate release motions. Now a court can review a compassionate release request “upon motion of the defendant.” However, the inmate cannot file in federal court until “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.” In other words, the inmate must first request BOP to file the motion on his or her behalf, and BOP must either deny or not file a motion with 30 days.
Second, the statute now includes notice and assistance requirements for BOP that will certainly streamline and expedite the request process. In cases where an inmate is diagnosed with a terminal illness, BOP must:
·       within 72 hours, notify the defense attorney and family members of the diagnosis;
·       within 7 days, provide them an opportunity for visitation;
·       if requested, assist them with preparing a compassionate release request; and
·       process all requests not later than 14 days after receipt.
If you are a defense attorney and receive calls from former clients or family members, the FPD is here to help. Also, if you have former clients who you think may be eligible to seek a reduction and want our assistance, please contact us.

The First Step Act and Prison Reform

Wed, 01/09/2019 - 22:02

The First Step Act lowered some drug sentences, retroactively reduced some crack cocaine offenses, and changed the mechanism for the compassionate release program. It also created new rehabilitative incentives within BOP. As usual, FAMM is a great source of information.

Here are some highlights.

Good Time Credit 
The BOP must now give 54 daysof good-time credit per year of sentence imposed, rather than 47 days that BOP was allowing. Everyone serving a term of years (a number, not a word) is eligible for good time credits.

There is a debate about when this goes into effect—Congress intended it to be immediate, but the wording of the Act is less than crystalline. It is a good bet that no one will see the new credit for several months. But it is retroactive, meaning BOP will be recalculate based on the entire sentence imposed. Some folks may be eligible for immediate release; some may be doing dead time waiting for BOP to recalculate.
Earned Time Credit
The First Step Act also allows some people to earn time credits by completing programs or other services. Depending on their risk levels, they can earn up to 15 days of credit for every 30 days of rehab or production activity. There are a lot of qualifiers and caveats, explained by FAMM. These time credits are not day-for-day reduction of the actual sentences, but can be redeemed toward time in half-way houses (RRCs), on home confinement, or on supervised release. 
And it will not go into effect immediately, either. BOP has 210 days to create risk assessment tools, six months to administer the assessments, and two years to phase in the programming. And then there is delay resulting from the federal government shut down, as The Marshall Projectexplains in its article, What the Government Shutdown Looks Like Inside Federal Prisons.
The longest section of the Act is the list of people excluded from earned time credits. FAMM has the full list here. Computer fraud? Out of luck. SORNA? Nope. Non-citizens with immigration detainers? Nada. Other offenses that are noteligible for the new time credits:
Almost any “organizer, leader, manager, or supervisor” enhanced sentence (USSG § 3B1.1)
§  924(c) offenses
Drug trafficking offenses with death or serious bodily injury
Child pornography offenses
Terrorism offenses
Aggravated illegal reentry and other immigration offenses
Non-citizens facing deportation
Treason (surprisingly)
And a plethora of weird offenses (recruiting child soldiers) that we never see.
Even if ineligible to earn time off, there are other incentives to complete the programming, such as greater phone privileges and commissary. Other good measures: BOP must help people get government ID cards before release; provide free tampons to women prisoners; and place people within 500 driving miles of their post-release residence (BOP policy used to read this “as the crow flies”) if space is available. And when possible, BOP is directed to move people closer to home.

Mandatory Minimum Sentences in Child Porn Cases: How to Use the Sentencing Commission's New Report

Sun, 01/06/2019 - 20:51

What is the Sentencing Commission good for? Statistics. They keep really good stats. And we can make use of the Commission’s own stats to fight against the Commission’s own guidelines.
The Commission just issued a report, Mandatory Minimum Penalties for Federal Sex Offenses (2019), with the critical conclusion that “unwarranted sentencing disparities” result from “inconsistent application of the mandatory minimum penalty for receipt offenses.”
This is what the Commission is talking about: Under 18 USC § 2252A(b)(1), the statutory mandatory minimum sentence for receiving child pornography is five years in prison. In contrast, the mandatory minimum for possessing child pornography is, well, none. And because the Commission ties the guidelines to the statutory penalties, the base offense level for receipt is 22, while the base offense level for possession is just 18.
Now, you may be wondering, “what’s the difference between these two offenses? How does one possess without receiving?” (we are excluding production from our convo here). And “how does one receive without possessing?”

The Commission had the same questions about this irrational discrepancy, and while noting it is technically possible, it concluded that: “there is little meaningful distinction between the conduct involved in receipt and possession offenses . . .”
So, you next ask, why are some people subject to a harsher sentence for the same conduct?  The answer, of course, is unilateral prosecutorial discretion to choose which charge to pursue. And we can do little about that, since the only avenue below a mandatory minimum in this context is cooperation and a motion under 18 USC 3553(e). Those are rare in CP cases.
But the Commission recognized that the inconsistency in charging practices could cause “unwarranted disparities,” something that Congress has directed the Commission and sentencing courts to avoid, under 18 USC § 3553(a)(6). The Commission made these key findings:
  •      "There was little difference in the offense seriousness between typical receipt cases, which require a five-year mandatory minimum penalty, and typical possession cases, which require none.”
  •        Even though the conduct may essentially be the same, the average sentence for receipt (5-yr MM) offenders is “substantially longer” than the penalty for possession (non-MM) offenders. “Child pornography offenders convicted of distribution (140 months) and receipt offenses (93 months), which carry a 5-year mandatory minimum penalty, also had a longer average sentence than offenders convicted of possession offenses (55 months), who did not face a mandatory minimum penalty.”
  •        This 2019 Report follows up on two other Commission reports, the 2011 Report on mandatory minimum penalties and the 2012 Report on Federal Child Pornography Offenses. The 2011 Report concluded that the guideline ranges “may be excessively severe and as a result are being applied inconsistently.” That Report recommended that Congress should “align the statutory penalties for receipt and possession to reduce unwarranted sentencing disparities resulting from inconsistent application of the mandatory minimum penalty for receipt cases.” The 2012 report said the same thing (at 326). Congress has yet to follow that recommendation, and the disparity remains.

How to use this information:
The Commission has thrice determined that “inconsistent application,” (read: prosecutorial discretion) in charging receipt (MM) rather than possession has resulted in “unwarranted sentencing disparities.” (2019 Report at 15 & 56). Use these reports to ask for a below-guideline variance. Argue that the variance should equal the calculation for a possession offense (base offense level 18) rather than a receipt offense (base offense level 22) under § 2G2.2. Otherwise, the “unwarranted disparity” will persist, contrary to 18 USC §3553(a)(6). A few more helpful statistics from the Commission. First, for comparison to your case, the average sentence lengths from 2016:
And then below-guideline sentences. Only about one quarter of all child pornography offenses were sentenced within the prescribed guideline range. Less than 2% were above. The remainder, whether sponsored by the government or not, were below guideline. It appears that a guideline sentence, based on the Commission’s own data, creates an “unwarranted disparity.”


When suspicion is no longer reasonable

Sun, 01/06/2019 - 19:00
Even if officers first act within their authority to carry out a stop under Terry v. Ohio because, among other things, a person’s clothing and race matches that of a fleeing suspect nearby, their reasonable suspicion to do so may well dissipate once officers are able to take a look at “his face and features.” Such was the case in UnitedStates v. Bey, in which the Third Circuit reversed the district court’s denial of a motion to suppress the gun found on the defendant’s person. The officers “should have noticed the clear differences in appearance[, including skin tone and facial hair,] and age” between their suspect and the individual before them. At that point, the officers’ suspicion was no longer reasonable, and the seizure should have terminated.

Conviction vacated.  

He "wasn't going to say anything at all"

Fri, 01/04/2019 - 10:57
A suspect who interrupted his Miranda warnings about half-way through to declare that he "wasn't going to say anything at all" unambiguously invoked his right to silence, and his responses to the interrogating officers' continued questioning should have been suppressed. So said the Fourth Circuit last month in United States v. Abdallah, No. 17-4230 (4th Cir. Dec. 18, 2018).

Lessons from Abdallah:

1. An invocation is not ineffective because it is made before the suspect has heard the entire Miranda warning: "there is no requirement that an unambiguous invocation of Miranda rights also be 'knowing and intelligent.'"

2. An invocation need not take any particular tone: "There is no requirement that Miranda invocations be measured, polite, or free of anger." 

3. What happens post-invocation is irrelevant to whether the invocation was ambiguous: "courts cannot cast ambiguity on an otherwise clear invocation by looking to circumstances which occurred after the request."

4. Don't conflate the invocation analysis with a waiver analysis: "Officers cannot fail to scrupulously honor a suspect's request in the hope that the suspect will subsequently waive that failure."

Balancing the probative and prejudical effects of prior bad acts

Tue, 01/01/2019 - 17:25
"[T]he same factors that make prior-act evidence probative—similarity and temporal proximity—may also increase the risk of this form of unfair prejudice."

These are the wise words of the Sixth Circuit in United States v. Asher, a must-read case for understanding the push-me/pull-you nature of Rule 404(b) and Rule 403's probative/prejudice analysis. In Asher, the Sixth Circuit reversed the defendant's conviction on grounds that the district court erroneously admitted Rule 404(b) evidence. If you're moving to suppress evidence of a prior bad act, read Asher.

Generic descriptions aren't enough for reasonable suspicion

Thu, 12/27/2018 - 17:21
11:00 am: Two "suspicious" men in a white Cadillac outside a Wells Fargo in Flagstaff, Arizona are seen heading east. One is a Native American man wearing a Bud Light hat and a checkered hoodie. One of the men may be wearing glasses.

11:41 am: Two men rob a Wells Fargo in Winslow, Arizona. One is wearing a Bud Light hat, the other a checkered shirt.

12:28-ish pm: Officer Phillips sees a white Cadillac on I-40 130 miles away from Winslow, drives alongside and peers in the darkly tinted window, and thinks the driver has glasses and the facial features of a Native American. He pulls the Cadillac over, solely to investigate the robbery. Was this a legal stop?

Two out of three Tenth Circuit judges said no, in United States v. Martinez. "White Cadillac" and "potentially Native American" are simply too generic to link the car on the highway with the car seen in Flagstaff and Winslow---especially absent any evidence that Officer Phillips saw anyone in the car wearing a Bud Light hat or checkered clothing.

“A white Cadillac on an interstate highway isn’t specific; nor is a driver with Native American 'facial features'—especially in Arizona.”

Order denying motion to suppress reversed.

Prior consistent statements are not always admissible

Tue, 12/25/2018 - 17:00
When is a prior consistent statement admissible to rehabilitate a witness, and when does its admission constitute impermissible bolstering? The Tenth Circuit recently clarified the rule in United States v. Magnan.

It's all about the chronology and the basis for impeachment. Let's start with chronology:

FRE 801(d)(B)(i) authorizes the admission of prior consistent statements "to to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying." (Emphasis added.)If the defense theory is that the declarant (say, the complainant in a child sex case) has consistently lied about the defendant, then the complainant's prior consistent statements don't rebut that charge---they simply repeat the lie. And thus:
T-0: Complainant develops motive to lieT-1: Complainant says X to motherT-2: Complainant says X to policeT-3: Complainant says X to social workerT-4: Complainant says X at trialThe defendant's cross-examination of the complainant at trial about her motive to lie does not open the door to the complainant's prior consistent statements under 801(d)(B)(i). The same motive existed for all of those statements. They do not rebut the charge of motive.But if:T-0: Complainant has no motive to lie
T-1: Complainant says X to motherT-2: Complainant says X to policeT-3: Complainant is offered praise or rewards (a pretty doll!) by social workerT-4: Complainant says X to social workerT-5: Complainant says X at trialIn this scenario, once the defense presents evidence that the social worker influenced the complainant's testimony, the government is free to present the complainant's earlier statements, to show that they were consistent with her trial testimony before any motive to fabricate arose.Okay, now, what about FRE 801(d)(B)(ii)? It authorizes the admission of prior consistent statements "to rehabilitate the declarant's credibility as a witness when attacked on another ground Doesn't that open the door to prior consistent statements if the defense so much as cross-examines the declarant?
No, it does not.Tread carefully here, and don't let the government get away with a broad reading of this rule. As the Tenth Circuit explains in Magnan, only some types of attacks will trigger the rule.For instance, if the defense claims inconsistency: The complainant told mother Y, but told the jury X, then the government may present the complainant's prior consistent statements of X to the police and the social worker to show that most of her statements were consistent.Or if the defense claims that the complainant has a faulty memory, the government may present the complainant's prior consistent statements to show that her memory is consistent with what she said earlier, closer in time to the events.But if the defense is simply that the complainant is lying, wanted attention, has an axe to grind, wanted the defendant out of the house---her prior consistent statements do nothing to rehabilitate her credibility. They are not admissible.So says the Tenth Circuit.

Changes in Drug and 924(c) Penalties: The First Step Act

Thu, 12/20/2018 - 14:51

The First Step Act passed Congress this week, and should be enacted by Friday. This Act lessens significant drug and firearm penalties and expands safety valve availability. It also has a “prison reform” section, which we will address in our next post.
Here, we highlight some of the penalty changes. More detailed analyses will follow, as it is more complicated than I describe below. This is just to introduce what you need to know today. Hold off on negotiations or sentencings until you know whether and how the Act may affect your case. These changes are not retroactive—you probably can’t fix this later.
851 enhancements. With one prior serious drug felony, the mandatory minimum is 15 years instead of 20. For two, the mandatory minimum is now 25 years instead of life. Note: Kansas USAO is one of the top ten districts in the nation for 851 filings.
And it is no longer any "felony drug offense.” A “serious drug felony” is:
  •   described in § 924(e)(2) (generally punishable by more than ten years in prison),* and
  •   client actually served more than 12 months' imprisonment, and
  •   client was released within 15 years of the commencement of the instant offense.

Unfortunately, 851s can now also be triggered by prior “serious violent felonies”, not just drug offenses. Those are:
  •   defined in § 3559(c)(2) (includes inchoate offenses but limits to force-against-person felonies), and 
  •  client served more than 12 months' imprisonment, but 
  •  no staleness limitation.

Safety Valve. Now allows up to 4 CHC points and still qualify, as long as none are 3-point offenses or 2-point violent offenses. Also, this counting “excludes any criminal history points resulting from 1-point offense.” Applies only to a conviction entered on or after the date of enactment.
Practice note: remember this implicates the 2-level reduction under §2D1.1(b)(17); ask for the equivalent variance, because the change will not yet appear in the guidelines.
Multiple 924(c)s. Multiple 924(c) convictions can no longer be consecutively stacked within one case (5 years + 25 years + 25 years = 55 years). Now, the convictions must be successive, that is, the conviction of the first 924(c) must be final before the second 924(c) offense occurs. This applies to any offense committed before the enactment if the sentence has not yet been imposed.
Ex post facto. The general rule of thumb for offenses committed before the Act but not yet sentenced is this: If the changes help your client, they should apply. If they  hurt your client (increases the punishment), it should be barred by ex post facto  considerations.
Retroactive Provisions. The Act made the Fair Sentencing Act of 2010 (crack v. powder statutory revisions) retroactive. Questions?  Contact Kirk_Redmond@fd.orgfor answers.

-- Melody

*federal drug felony or state drug trafficking felony with a maximum term of imprisonment of ten years or more, see U.S. v. Romero-Leon, 622 Fed. Appx. 712 (10th Cir. 2007).

Reading & 'riting & 'rithmetic

Wed, 12/19/2018 - 16:53
Federal practitioners need no longer be befuddled by the Commission’s persistent misspelling of marijuana. The Commission amended USSG § 2D1.1 and the relevant commentary, and replaced the term “marihuana equivalent” with “converted drug weight.”

We updated and renamed our spreadsheet as the Converted Drug Weight Calculator to conform to amendments to the United States Sentencing Guidelines effective November 1, 2018. When a drug case involves multiple controlled substances, the base offense level is calculated using U.S.S.G. 2D1.1, Application Note 8(B). This guideline sets a converted drug weight for each gram of the commonly encountered controlled substances. The sum of the converted drug weight is then used to determine the base offense level under the drug quantity table found at 2D1.1(c).

The Converted Drug Weight Calculator does not account for the reduction in offense level when the accused receives a mitigating role as provided in U.S.S.G. 2D1.1(a)(5), or any applicable reduction for acceptance of responsibility under U.S.S.G. 3E1.1. The spreadsheets also do not factor enhancements for specific offense characteristics found at 2D1.1(b), or enhancements from Chapter 3 or Chapter 4, Part B of the Guidelines. Finally, our spreadsheets do not apply to offenses covered by U.S.S.G. 2D1.11, Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy.A summary of other revisions to USSG § 2D.1.1 effective November 1, 2018, can be found here.

Thank you, David Freund, for both the spreadsheet and this post.

A trash pull that produces scant evidence of a marginal offense does not provide probable cause to search the home

Sun, 12/16/2018 - 19:05
So found the Fourth Circuit last Friday in United States v. Lyles, affirming the district court’s grant of the defendant’s motion to suppress.

In Lyles, based on a hunch that an individual may be relevant to a homicide investigation, police conducted a search of four trash bags found near the curb of the individual’s home. Within the trash bags they found “three empty packs of rolling papers, a piece of mail addressed to the home, and three marijuana stems. That is all.” Based on that, the officers sought and obtained a search warrant to search the home in toto. Firearms were found therein, and Lyles was charged with felon-in-possession.
In affirming suppression, the Fourth Circuit first stressed the unreliable nature of evidence derived from trash pulls in general: “Precisely because curbside trash is so readily accessible, trash pulls can be subject to abuse. Trash cans provide an easy way for anyone so moved to plant evidence. Guests leave their own residue which often ends up in the trash.”
And here, to permit “the indiscriminate rummaging through a household” based on the finding of a single marijuana stem (or three) from a curbside trash pull cannot withstand constitutional scrutiny. Allowing “comprehensive searches following minor infractions would create,” the Lyles court recognized, “a serious and recurring threat to the privacy of countless individuals.”
Nor could the good-faith doctrine salvage the government’s illegally-obtained evidence where, “objectively speaking, what transpired here is not acceptable.”

“Encouraging or inducing” an alien to remain held unconstitutionally overbroad

Sun, 12/09/2018 - 10:02
Last week, in United States v. Sineneng-Smith, the Ninth Circuit vacated  convictions for encouraging and inducing an alien to remain in the United States for the purposes of financial gain, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) & 1324(a)(1)(B)(i), finding the statute unconstitutionally overbroad because it impermissibly criminalizes a substantial amount of constitutionally-protected expression.

Specifically, subsection (iv) of that statute provides for a felony prosecution where one “encourages or induces” an alien to come, enter, or reside in the United States if the defendant knew, or recklessly disregarded the fact that such coming to, entry, or residence is or will be in violation of the law.
As examples of the statute's impermissible infringement on protected expression, the Ninth Circuit noted the doting grandma who could face felony charges for urging her grandson to overstay his visa by saying, “I encourage you to stay.” The Ninth Circuit, too, highlighted the numerous examples of professionals, such as attorneys, whose speech may be chilled by the breadth of subsection (iv) given that, under the statute’s clear scope, an “attorney’s accurate advice could subject her to a felony charge.”
As a result? The statute is unconstitutionally overbroad given that “[t]he burden on First Amendment rights is intolerable when compared to the statute’s legitimate sweep.” Convictions vacated.

Who, other than Congress, gets to define criminal law? The AG? The DEA? The USSC?

Tue, 12/04/2018 - 18:42
Three pending/recent cases remind us that there may be limits when federal agencies act in ways that extend the reach of the criminal law.
In Gundy v. United States, the Supreme Court will decide whether the nondelegation doctrine allows the attorney general to decide whether to apply SORNA’s registration requirements to pre-SORNA offenders. More generally, Gundy raises the question of who, other than Congress, gets to define criminal law.In United States v. Phifer, the Eleventh Circuit recognized that the rule of lenity limits an agency’s power to extend the reach of criminal law through its interpretation of its own regulations. In 2014, the DEA exercised its delegated authority to add drugs to the schedules of controlled substances on an emergency basis to schedule butylone and its “positional ... isomers.” Phifer was later charged with possessing ethylone, which qualified as a controlled substance only if it constituted a positional isomer of butylone. DEA had earlier created a regulatory definition of “positional isomer,” and ethylone was a positional isomer of butylone under this definition. But by its terms that regulatory definition applied to permanently scheduled drugs, whereas butylone had been scheduled on a temporary basis. Phifer argued that the court should instead apply the definition of “positional isomer” that was accepted in the scientific community, under which ethylone was not a positional isomer of butylone.The Eleventh Circuit found that the regulation defining “positional isomer” was ambiguous as to whether it governed temporarily scheduled drugs. The government argued for Auer deference, under which courts defer to the promulgating agency’s interpretation of an ambiguous regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Auer deference would have been fatal here. But the Eleventh Circuit rejected the doctrine, reasoning that in a criminal case whose outcome turns on the meaning of an ambiguous regulation, the rule of lenity trumps Auer. Regulations underpin many federal criminal prosecutions. Phifer recognizes an important limitation on the reach of regulations.
Finally, in United States v. Havis, the Sixth Circuit questioned circuit precedent that deferred to the Sentencing Commission's interpretation of the Guidelines (which are approved by Congress) via the commentary (which is not). As the concurring judge put it, deference to agency decisionmaking is problematic enough in civil cases, but when deference to the Sentencing Commission extends a defendant’s prison time, “alarm bells should be going off."

Thanks to Tom Bartee, Branch Chief, Kansas City, Kansas FPD for this post.

Do only 2-4% of child-abuse complainants lie? Can an expert say so to a jury?

Sun, 12/02/2018 - 12:18

It’s well settled that it’s the jury’s critical and exclusive function to make witness-credibility determinations. Hence the Tenth Circuit’s unequivocal finding this last week in United States v. Magnan that error occurs when an expert witness usurps the role of the jury by placing a mathematical estimate on the rate of false accusations by victims.
In Magnan, the defendant was facing numerous counts of various sex crimes, including multiple counts of sexual abuse of a minor. At trial, the government’s expert witness cited to studies regarding false accusations by children, and summarized the studies’ conclusions as follows:
[What the studies determined was that] the rate of false disclosures by or false allegations exclusively by a child was in the 2 to 4 percent range. Some literature goes as high as 5, maybe a little higher. But the standard studies that are frequently quoted are 2 to 4 percent.
The Tenth Circuit’s conclusion? The expert’s citation to the studies that only 2-4% of children lie about being sexually abused was the equivalent of vouching for the alleged victims. And by impermissibly bolstering the credibility of the witnesses, the government’s expert usurped the jury’s exclusive function.
Magnan is a valuable precedent to have in your pocket, especially when moving pretrial to exclude such impermissible evidence from being introduced in the first place.

"Law enforcement officers are not average citizens"

Wed, 11/28/2018 - 13:34
In Hein v. North Carolina, 135 S.Ct. 530 (2014), the Supreme Court held that a police seizure based on an objectively reasonable mistake of law does not violate the Fourth Amendment.

This month, the Kansas Court of Appeals reminded us that not every mistake of law is objectively reasonable. An officer may not, for instance, reasonably claim confusion about the plain, unambiguous language of a statute or ordinance---even if that same law might confuse an average citizen. 

In State v. Lees, ___ P.3d ___, 2018 WL6005199 (Kan. App. Nov. 16, 2018), a police officer stopped Mr. Lees for a brake-light violation. But Mr. Lees did not commit a brake-light violation. While his left brake light was out, he had working middle and right brake lights. And that is all that Kansas law unambiguously requires. The Court had little sympathy for the officer's claim of confusion:

"[T]he Kansas statutes are clear that only two functioning brake lights are required. Reading K.S.A. 8-1708(a) and K.S.A. 8-1721(a) together, no reasonable officer would think that the law required brake lights to be spaced laterally as far as practicable and mounted at the same height, as Sperry wrongly believed; neither statute suggests such a requirement in any way. Granted it may be reasonable for the average citizen to believe the law likely requires left and right brake lights, but law enforcement officers are not average citizens. They must reasonably study the laws they are duty bound to enforce. See Heien, 135 S.Ct. at 539-40."


Mon, 11/26/2018 - 19:10
Yesterday, the federal courts awarded the 2018 Director’s Awards. The awards “recognize outstanding leadership, innovation, and efficiency.” The Outstanding Leadership award went to Betsy Shumaker, the Clerk of Court for the Tenth Circuit. As practitioners in the Tenth Circuit, we can confirm that the award was well deserved. Betsy and her staff do a top-notch job managing the Circuit, and we very much appreciate it. Here’s the full blurb from the Administrative Office:

Elisabeth A. “Betsy” Shumaker, Clerk of Court for the Tenth Circuit, has led national initiatives in such diverse areas as finances and budgets, information technology, staffing formulas, and data governance.Shumaker chairs the Appellate Clerks Advisory Group, and has served on the Budget and Finance Advisory Council, the Space and Facilities Advisory Council, the Appellate Court and Circuit Offices Work Measurement Steering Group, and the NextGen Project Steering Group and Advisory Board, which provides guidance on an update of the Judiciary’s Case Management/Electronic Case Files system.“Betsy’s involvement in such a wide variety of important councils, committees and initiatives . . . speaks volumes of her stature as a national leader,” wrote Tenth Circuit Chief Judge Timothy M. Tymkovich in Shumaker’s nominating letter. “Betsy exemplifies the very best qualities of leadership in the federal Judiciary.” Tymkovich credited Shumaker with leading an almost total conversion from paper to electronic dockets, resulting in greater access to litigants, lawyers and the public.

Congratulations, Betsy!

Posted by Dan Hansmeier on behalf of the Kansas FPD.

The Fourth Amendment still applies to those on community supervision

Sun, 11/18/2018 - 10:52
Somewhere north of 4,500,000 adults are on some form of community supervision throughout the United States. The Supreme Court has held that such individuals have a diminished expectation of privacy under the Fourth Amendment by virtue of their status. 
A diminished expectation of privacy does not, however, provide POs or LEOs with free rein to do whatever they please. Rather, their conduct is still constrained by reasonableness under the Fourth Amendment, as the Sixth Circuit reminded us this past week.
In Brennan v. Dawson, the probationer's expectation of privacy under the Fourth Amendment was diminished in that he was subject to random breath tests as a condition of his probation. But no condition of his supervision diminished his reasonable expectation of privacy in his home. As such, the probationer “was as secure in his home as a non-probationer.”
Hence, the Sixth Circuit's finding that probationer’s Fourth Amendment rights were violated when the sheriff deputy arrived unannounced at probationer’s home (or his castle, as the Tenth Circuit reminded us just last week) to conduct a breath test, and, assured someone was inside, roamed the curtilage of the probationer’s home for over 90 minutes until the probationer finally emerged.
Despite repeated misconduct that may leave you thinking otherwise, the Fourth Amendment still applies to the millions of those in our communities who are on supervision. 

"A man’s house is his castle, whether it is under siege by police officers prying into his possessions stored within or whether they exclude him from its sanctuary."

Thu, 11/15/2018 - 22:58
Police officers seized Mr. Shrum's home after his wife died from an overdose. They didn't let Mr. Shrum back into his home to check on his dogs, get medication that his wife may have overdosed on, or even to urinate for eleven hours before even applying for a warrant. And the seizure was done without a reasonable basis (no evidence of foul play).

But officers gained "consent" from Mr. Shrum who wanted to make sure his dogs were cared for and that the investigators had what they needed to determine the cause of death. And while purportedly only doing those two things, an investigator took dozens of photos of the house and saw ammunition in the home in plain view.
Was this consent proper? No, says the Tenth Circuit. The consent was obtained only as a result of the illegality of the initial improper seizure. 
This case is full of good language, including a lot of strong language about the overriding privacy interests in a person's home. And the court, in a footnote, also took a shot at the government's strategy in the case:

From farms to cities to The cloud--"the internet of things"

Sun, 11/11/2018 - 16:32
We take time to pay tribute to our active and former service members this Veterans Day for their honor, courage, commitment, and sacrifice over the past century to defend the ideals of democracy and freedom on which America was founded more than 240 years ago.

It’s veracious to say that during those 240 years we, as a nation, have evolved dramatically in how we live—from farms, to cities, and now on the internet. But the speed at which we have evolved in the age of the internet cannot be understated, as FarhadManjoos’s piece, A Future Where Everything Becomes a Computer is as Creepy as You Feared, makes readily clear. It was only 40 years ago that Gates and Allen “founded Microsoft with a vision for putting a personal computer on every desk.” And the industry’s goal today, Manjoos recognizes, is not “a computer on every desk nor a connection between every person, but something grander: a computer inside everything, connecting everyone. Cars, door locks, contact lenses, clothes, toasters, refrigerators, industrial robots, fish tanks, sex toys, light bulbs, toothbrushes, motorcycle helmets.” 

Importantly, the ideals of democracy and freedom for which our service members have valiantly and selflessly defended, do not end in this digital age, which the Supreme Court has repeatedly reminded us. (See e.g., Riley v. California (2014), and United States v. Carpenter (2018) for a couple recent examples.)

But “the internet of things”—or technological advancements leading to more and more “smart” toys—necessarily means that more information that exposes extraordinarily sensitive details about us (far more so than a search of our home even could) will end up in that proverbial “cloud.” And while “cloud storage” sounds metaphysical, we know that such storage is quite physical: it resides on identifiable, physical computers in brick-and-mortar datacenters, which users’ own electronic devices access remotely when used by their respective devices and accounts. 
To be certain, though, the speed at which the tech giants can hurl these smart toys into our atmosphere cannot countermand our civil rights and liberties. It is our duty to be vigilant, to spot these issues of potential infringement on our constitutional rights and civil liberties early, and to raise them.
In that vein, for those not yet familiar with Electronic Frontier Foundation (EFF), you should be. It is one of the leading nonprofit organizations defending civil liberties in the digital world, providing indispensable leadership on cutting-edge issues of free expression, privacy, and human rights. In 2017 the organization filed 59 amicus briefs on issues surrounding civil liberties and technology (among many other things, including bringing a groundbreaking lawsuit challenging invasive border searches of electronic devices), as discussed in EFF’s recently released annual report, found here.

Restoration of Voting Rights

Wed, 11/07/2018 - 22:03
On election night, we learned that voters in Florida agreed to reinstate the voting rights of 1.5 million persons with prior felony convictions. With Florida’s passage of Proposition 4, most Floridians with prior felony convictions will have their voting rights restored after they have finished the terms of their sentence (including any probation or parole). This could affect 10 % of Florida’s adult population (and 23 % of adult African Americans in Florida).

Here in Kansas, a felony conviction will lead to a temporary loss of the right to vote. But Kansas law automatically restores voting rights to persons with felony convictions once they have completed the terms of the sentence (including any supervision). Under K.S.A. 21-6613, a person with a felony conviction gets the restoration of their right to vote, to hold public office, and to serve on a jury once they complete the terms of their sentence.

So it is across the state line in Missouri. Under Mo. Ann. Stat. §§ 115.133(2) & 561.026(1), a person convicted of a felony is generally unable to vote until they are finished any term of incarceration or probation or parole. But after the terms of the sentence are completed, the right to vote is restored.This is something to keep in mind when advising clients about the collateral consequences of any felony conviction in federal court. You should advise clients that they will lose their right to vote (and to hold public office and to serve on a jury) with their conviction. But this loss of civil liberties is usually temporary. Once the client finishes the terms of their sentence they will again be eligible to vote if they live in Kansas or Missouri (or in many other states).