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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger466125
Updated: 1 hour 38 min ago

Cross-border data and the contours of law enforcement's reach

Mon, 02/19/2018 - 13:13

As you’ve likely seen if not already digested, there has been substantial chatter lately regarding United States v. Microsoft (also known as “the Microsoft Ireland case”), which is scheduled for oral argument before the Supreme Court next week. If you’ve fallen behind, discourse on this case may be found here, here, and here.

To quickly summarize, in 2013, under the Stored Communications Act (SCA), the U.S. government sought a warrant to seize from Microsoft the contents of a customer’s email account that the government believed was being used for drug trafficking in or into the United States. Microsoft turned over data stored in the United States (including the address book linked to the email account), but moved to quash the search warrant to the extent that the warrant directed Microsoft to produce content stored on a server located in Ireland. The district court denied the motion to quash, but the Second Circuit reversed, vacated, and remanded the matter, finding that the district court lacked the authority to enforce the warrant against Microsoft given that the SCA “[n]either explicitly or implicitly” envisions “the application of its warrant provisions overseas.”
On February 27, the Supreme Court will hear oral arguments to address whether federal courts have the authority under the SCA to issue warrants for the search and seizure of foreign-stored data, and whether the presumption against extraterritoriality and the concomitant interests of the international community, for example, forbid such action.
Aside from the permissible scope of the SCA, the arguments and authorities presented by the parties—and those found within the 23 amicus briefs—as well as the ultimate decision in this case, may prove relevant for challenging warrants seeking electronically-stored information (ESI) from unknown locations under the recently amended Rule 41 (which we have previously blogged about here). We know that much of the impetus behind Rule 41’s changes regarding searches for ESI derived from the government’s inability to establish the location of a target, placing a search and seizure outside the scope of Rule 41’s then-jurisdictional limitations (not to mention the Fourth Amendment’s particularity requirements). Rule 41 now purports to authorize a magistrate or district court judge to issue a warrant that permits law enforcement to use remote access to search and seize electronic storage media located outside the judge’s district.
But may a judge do so knowing that the government is undoubtedly seeking authorization to search and seize electronic data located not only outside of its district, but also outside of the United States? Rule 41, as amended, does not explicitly address the international conundrum, and given that it was passed under the guise of a procedural rule change, it is lacking any delicate balancing of competing interests by Congress.
Moreover, the subcommittee notes attached to Rule 41’s amendment submitted by the Judicial Conference (the policy-making arm of the federal judiciary) readily acknowledges that the “[t]he amendment [to Rule 41] does not address constitutional questions, such as the specificity of description that the Fourth Amendment may require . . . leaving the application of this and other constitutional standards to ongoing case law development.”
Microsoft will not answer all questions about law enforcement’s international reach, but it hopefully will provide us with at least some insight into the High Court’s thinking in this complex area of search-and-seizure law.

A (tiny) peek inside DOJ's discovery manual

Wed, 02/14/2018 - 08:31
Thanks to the National Association of Criminal Defense Lawyers, we can now read a tiny portion* of the Justice Department's Federal Criminal Discovery Blue Book, unsealed by a D.C. District Court. The court denied full disclosure of the 265-page manual on work-product grounds.

The disclosed portions (select excerpts from a mere 17 pages) don't tell us much, but they do restate important Giglio policies---though at times with more of an eye toward keeping defense lawyers from "improperly introduc[ing]" impeachment information than toward complying with constitutional mandates:

More importantly, the excerpted policies may provide additional fodder for claims that the government has failed in its discovery duties.

*Available through a link on NACDL's news release.

Young adults: not so adult after all

Sun, 02/11/2018 - 19:41
The law may currently view 18-25-year-olds as adults, but we as their lawyers should not—no matter the charges, no matter the court, and no matter the issues that we are litigating.

Thanks to a number of landmark United States Supreme Court decisions handed down over the last decade-and-a-half, it is well established that the wealth of characteristics and circumstances attendant to a juvenile defendant’s age necessarily color a court’s suppression determinations and may, among other things, provide decisive mitigation for sentencing purposes.
These decisions dating back to the Court’s 2005 decision in Roper v. Simmons (declaring the death penalty unconstitutional for offenders under the age of 18 at the time of the offense) are grounded in scientific and social-science research that focuses largely on the effects of the brain’s maturation process on youth under the age of 18. Specifically, the Court has recognized that there are fundamental differences between a juvenile and an adult brain. And those differences—accounting for a less developed character, immaturity, vulnerability and susceptibility to negative influences and outside pressures, transient rashness, and proclivity for risk, to name a few—not only diminish a juvenile's culpability but also enhance the prospect of reform as the years go by and neurological development occurs. This line of Supreme Court cases is therefore critical to any juvenile accused of committing a crime.
Importantly, though, the consensus in the scientific community today is that these diminished-culpability concepts also apply to those who are later in their adolescence and into their mid-twenties. On February 5, 2018, the American Bar Association’s House of Delegates recognized this significant consensus in the scientific community, passing a resolution calling on jurisdictions that still have capital punishment to prohibit its imposition against those who were 21 years of age or younger at the time of the offense. The ABA’s resolution notes that while neuroscience had played no part in Supreme Court decisions before 2000, "large-scale advances in the understanding of the human brain, have led to the current medical recognition that . . . profound neurodevelopmental growth continues even into a person’s mid to late twenties."
The ABA’s resolution provides a treasure trove of resources for anyone representing a youthful client. And so, too, does the August 2017 Order issued by Fayette County Circuit Judge Ernesto Scorsone declaring Kentucky’s death penalty statute unconstitutional on these grounds. (*Note: Judge Scorsone’s Order is currently percolating through Kentucky’s appellate courts.)
Youth matters; science and social science tells us so, as does common sense. 

ICE: Coming to a courthouse (and just about everywhere else) near you

Tue, 02/06/2018 - 16:12
Last month, ICE issued a new directive regarding enforcement actions in courthouses. The directive states that only targeted aliens will be subject to these actions, and that accompanying friends and families will---absent "special circumstances"---be left alone (though the directive warns that all decisions will be made on a "case-by-case basis"). Read the whole directive so you'll know what to expect in your municipal, state, and federal courthouses. And then read this ACLU resource for attorneys whose clients are approached by ICE in a courthouse.

In other ICE news, the agency recently contracted with Vigilant Solutions for access to that company's massive license-plate tracking database. In case you're wondering about the Fourth Amendment implications of such tracking, at least one district court says there are none. See United States v. Yang, No. 2:16-cr-231, 2018 WL 576827 (D. Nev. Jan. 25, 2018). Pay attention to the detailed factual findings in Yang and be prepared to distinguish them in your own Fourth Amendment attack on the use of this invasive tracking technology.

Hat tip

Why do innocent people plea guilty?

Thu, 02/01/2018 - 23:03
A recent opinion piece by public defender Jeffrey Stein does a nice job explaining why an innocent person would plea guilty:You lay out options for your client. You could go to trial, but that might mean waiting in jail for months, if not years, before a jury hears the case. The idealist in you — the one who enrolled in law school to “change the system” and to fight for justice on behalf of those who need it most — hopes your client will proclaim a decision to go to trial. But a wary voice in the back of your head reminds you of the risk and life-altering consequences of losing.And Stein explains what, for many of us is  a dreaded moment: when the judge asks if there is any reason why the court should not accept your client's offer to plea guilty:
You hesitate. You want to shout: “Yes, your honor! This plea is the product of an extortive system of devastating mandatory minimums and lopsided access to evidence. My client faced an impossible choice and is just trying to avoid losing his life to prison.” But you stand by your client’s decision, which was made based on experiences and emotions only they can know. You reply: “No, your honor.” The marshals lead your shackled client to a cage behind the courtroom. And the judge moves on to the next case.


Tenth Circuit oral-argument audio now online

Tue, 01/23/2018 - 19:38
Are you partial to the dulcet tones of lawyers and judges whilst you wash your dishes, perform your ablutions, or take your daily exercise? Then you are in luck. The Tenth Circuit is now posting audio recordings of all of its oral arguments online. You can access the links from the Opinions tab on the Circuit's home page:


Not sure what to listen to? Check out Issues Pending or the Oral Argument Calendar links on our home page to find out which cases are about issues important to you and your clients.

Happy Listening!

Court to government: Tend to your own knitting

Sun, 01/21/2018 - 17:56
The prosecution's effort to bump defense counsel from a federal case drew sharp criticism from the Ninth Circuit in the recent case of United States v. Wells, ___ F.3d ___  (No. 14-30146) (9th Cir. Dec. 19, 2017). In Wells, the government unsuccessfully opposed the appointment of a second defense counsel in a death-eligible case. After the government decided not to seek the death penalty, it asked the magistrate court to remove the second counsel. In response, the Federal Public Defender argued that both counsel should continue as both had established a relationship with the client and both had invested a great amount of time and effort in defending the case. Removing counsel would leave an already overworked FPD at a great disadvantage against the three-attorney prosecution team. The magistrate judge, though, sided with the prosecution, leaving the defendant with one attorney.

On appeal, the Circuit soundly chastised the government, making clear that the prosecution had no business interfering with the defendant’s representation. “The Government’s decision to insert itself into the important determination of Wells’ fair representation carries with it a reproachable air of stacking the deck, for which we cannot offer tacit acceptance.”  The Court described the process appointing defense counsel under the Criminal Justice Act, and noted that the prosecution is generally precluded from participating in the determination of eligibility of counsel and related functions. This includes case budgets, requests for expert services, and expense reimbursement claims. “The Government’s exclusion from the administration of the CJA is a significant contributing factor to the fairness of our system and the CJA’s role in redressing the imbalance of power between an indigent defendant and the government.”

Although the magistrate judge’s decision to remove one of the defense attorneys did not rise to the level of reversible error, the Court advised the government to, in the future, “tend to its own knitting.”
-- Laura Shaneyfelt, CJA Resource AttorneyDistrict of Kansas FPD

Third-party-notification condition unduly vague

Wed, 01/03/2018 - 11:36
Condition 12 of the standard conditions of supervised release adopted in Kansas (D. Kan. Standing Order No. 16-2, tracking USSG § 5D1.3(c)) provides:
If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.Last month, the Sixth Circuit agreed with the pro se appellant in United States v. Sexton that this condition is unconstitutionally vague, joining the Seventh Circuit, which held in United States v. Thompson, 777 F.3d 368, 379 (7th Cir. 2015), that this condition is "riddled with ambiguities." Exactly what sorts of risks must be disclosed to what third parties?

Object to this condition. Otherwise, your client may end up like Mr. Sexton, whose probation officer concluded that he was required to disclose all of his romantic liaisons, so that the officer could notify Sexton’s partners of his federal conviction. Not the best start to a relationship.

 

Trial Skills: Book Reviews

Mon, 01/01/2018 - 18:16
With the new year, some of us are making resolutions, like we will read more. We have gift cards or holiday money that we need to spend. It is too cold to go outside. And . . . we should expect to see more trials in 2018. With that, here are a few book recommendations:

Images With Impact: The Design and Use of Winning Trial Visuals, by Kerri L. Ruttenberg. Our jurors learn and remember more when information is received visually as well as aurally.  This is not a book about PowerPoint, but the "benefits of visual communication and the graphic design techniques that make our visuals more effective."

Trial in Action: The Persuasive Power of Psychodrama, by Joane Garcia-Colson, Assistant Federal Public Defender Fredilyn Sison, and Mary Peckham. "This book is intended for practicing attorneys." Not wild about the term psychodrama, but it is really just a method of credibly and effectively communicating your client's defense to a jury. It provides concrete and creative instruction on how to try the most challenging cases.

The Fearless Cross-Examiner: Win the Witness, Win the Case, by Patrick Malone. This book's approach might surprise you--it is not about going for the dramatic kill on cross, but how to comprehensively build your case through cross. Aaron Nelson recommended this book when he spoke at our October CLE on cross-examination (if you missed him, check out his materials on our website).

Not just for writers, Bryan Garner's Making Your Case (a book you must own) provides an excellent list of books under Recommended Sources, including topics like Modern Guides to Classical Rhetoric, Public Speaking, and Logical and Critical Thinking.

Read away.

--Melody

Offer to sell is still not a controlled substance offense

Thu, 12/28/2017 - 22:21
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.

Profile evidence: "inherently prejudicial"

Wed, 12/27/2017 - 18:08
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.

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."

"Protective sweep" suppressed

Wed, 12/20/2017 - 23:24
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.

Taking detention decisions seriously

Tue, 12/19/2017 - 19:33
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.

1) Read the whole PSR; 2) Object

Thu, 12/14/2017 - 22:33
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.

Holistic lawyering: not just for defense lawyers anymore

Tue, 12/12/2017 - 19:04
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.  

Cert Grant Series: For the Bikers.

Sun, 12/10/2017 - 21:16
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.”

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).

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 Maintenanceto 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.

This is what "substantial interference" with a defense witness looks like

Thu, 12/07/2017 - 19:50
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.

Cert Grant Series: “If this is the law, nobody is safe.”

Sun, 12/03/2017 - 21:38
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 splitarises 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.



Racial profiling is illegal in Kansas: now what?

Tue, 11/28/2017 - 17:59
Kansas law prohibits law-enforcement officers from using race or other prohibited factors when deciding whether to conduct a stop, arrest, or search. K.S.A. 22-4606, et seq.

Last month, the Kansas Supreme Court held in State v. Gray, 403 P.3d 1220 (Kan. 2017), that suppression is an appopriate remedy in state court for an officer's violation of this law. This is a must-read case for all Kansas state practitioners.

But how can this state law help our federal clients? The Supreme Court has held that violations of state law do not by themselves render a search or seizure unreasonable for Fourth Amendment purposes. See Virginia v. Moore, 553 U.S. 164 (2008). But a violation of Kansas's anti-profiling law might be decent fodder for cross-examining an officer who claims to be well trained and respectful of a client's legal rights.

Even better, violations of Kansas's anti-profiling law might render an officer's conduct flagrant for purposes of an attenuation analysis under Utah v. Strieff, 136 S.Ct. 2056 (2016). As we recently blogged, the discovery of an arrest warrant after an illegal stop will not remove the taint of a stop that resulted from racial profiling.

How else can we call upon this law to help our clients? Let us know your thoughts. The Kansas legislature did a righteous thing by adopting an anti-profiling law. Let's do our part to see that the law is enforced.

Risk of flight must be volitional under Bail Reform Act: "A defendant is not barred from release because he is a deportable alien."

Sun, 11/26/2017 - 22:28
An immigration "detainer" in effect at the time of an initial appearance in federal court is not enough, standing alone, to justify detention under the Bail Reform Act, according to a ground-breaking Tenth Circuit decision published last week. In United States v. Ailon-Ailon, the Court held that the risk of removal by ICE is not the same as a risk that the defendant will flee. This was an issue of first impression in this circuit.

Mr. Ailon-Ailon is charged with an immigration offense in the District of Kansas. The government moved to keep him in custody because an immigration detainer had been filed with the U.S. Marshal. That detainer was actually a form from ICE asking to take custody of the defendant if he were released from federal custody because he was (allegedly) subject to a reinstated deportation order.

The district court detained Mr. Ailon-Ailon based on a risk of flight. That is, the court determined that removal by immigration posed "a serious risk that such person will flee," a determinative factor under 18 U.S.C. § 3142(f)(2).


The Tenth Circuit reversed. "We conclude that the plain meaning of 'flee' refers to a volitional act rather than involuntary removal, and that the structure of the Bail Reform Act supports this plain-text reading." The Court observed, "As Ailon-Ailon noted at oral argument, one would not describe an individual who has been arrested at a crime scene and involuntarily transported to a police station as having fled the  scene." The government argued, unconvincingly, that it had no control over whether or when ICE would deport; the Court held that any fight over which federal agency has priority is for the Executive Branch to resolve.

The remedy was not a remand for further hearing on whether Mr. Ailon-Ailon should be released, but a directive to the lower court "to set appropriate conditions for Ailon-Ailon’s release pending trial. When the conditions of release have been met, the United States Marshals shall release Ailon-Ailon to ICE custody, pursuant to the detainer."

-- Melody





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