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Updated: 2 hours 5 min ago

The "least reliable type of hearsay"

Tue, 03/19/2019 - 19:11
Once again, a circuit court has reversed a defendant's supervised-release revocation because the district court improperly relied on hearsay to find a violation.

In United States v. Sutton, the Eighth Circuit held that the district court should not have admitted and relied on videos and transcripts of three witnesses' oral, unsworn statements in response to police interrogations---the "least reliable type of hearsay"---to find that the defendant had committed an assault while on supervised release. The government failed to prove either that confrontation of the witnesses was undesirable or impracticable (its efforts to subpoena the witnesses were insufficient), or that the statements were reliable.

Indeed, the statements were collectively unreliable, as they demonstrated "intoxication, potential culpability in the crime, lapses in memory, repeated falsehoods, and motive to implicate the defendant." The district court should not have admitted the statements.

Fortunately for Mr. Sutton, his counsel objected to admission of the statements as hearsay, violations of his constitutional rights, and Rule 32.1 violations, thus preserving the issue for appellate review.

We've blogged about Tenth Circuit cases on the admission of hearsay at revocation proceedings before here and here. Take note. And OBJECT.

No, officer, you may not stop someone for flipping you off

Thu, 03/14/2019 - 08:50

Displaying a middle finger to the police is "crude, not criminal," and this officer "should have known better" than to pull a driver over for that. Cruise-Gulyas v. Minard, No. 18-2196 (6th Cir. March 13, 2019).

My purse is not my person

Tue, 03/05/2019 - 13:24
Police can search a person incident to arrest. But can they search the person's purse? No, at least not on the theory that the purse is an extension of the person. So said the Tenth Circuit this week in United States v. Knapp, declining to follow courts construing "person" to include containers held by the person at the time of arrest.

Here are the rules to know, as stated by the Tenth Circuit in Knapp:

"[S]earches incident to arrest are governed by a container’s location relative to the arrestee and the degree to which it can be accessed by or separated from the arrestee."

Whether a search of a container incident to arrest is justified depends on "the arrestee’s ability to access weapons or destroy evidence at the time of the search, rather than the time of the arrest" (emphasis added).

"[T]he degree to which arresting officers have separated an article from an arrestee at the time of the search is an important consideration."

In Knapp, officers searched the defendant's purse despite the fact that her hands were cuffed behind her back, three officers were present, her purse was closed and three to four feet behind her, and officers had kept exclusive possession of the purse since cuffing the defendant. This was not a proper search incident to arrest.

How to object to 404(b) evidence (and its fallout)

Tue, 02/26/2019 - 16:59
Sometimes civil cases involve issues familiar to criminal-law practitioners.

In Crew Tile Distribution, Inc., the plaintiff, Crew Tile, filed a breach-of-contract claim against Porcelanosa. Porcelanosa countersued, claiming that the contract allegedly breached was forged. The trial court denied Crew Tile’s motions in limine to exclude 404(b) evidence of an earlier and also allegedly forged contract between the same parties.

This was error, but harmless, the Tenth Circuit held, in a decision that offers several lessons to criminal-defense lawyers:

The trial court erred in admitting the evidence. Porcelanosa never identified any proper purpose for admitting the evidence---it just parroted the exceptions listed in Rule 404(b). The proper purposes cited by the district court in admitting the evidence were “divorced from Porcelanosa’s theory of its case,” which was essentially that Crew Tile’s operator was a serial forger. In other words, Porcelanosa wanted to use the evidence for propensity purposes.

But alas! This error was harmless, because the trial court properly limited Porcelonosa’s use of the evidence “to prove the parties’ prior business relationship.”

But wait! Porcelanosa exceeded those limits by arguing to the jury that the evidence proved Crew Tile’s operator was “a forger.”

But alas! Crew Tile did not object to this argument, instead meeting it head on in its own arguments and evidence. “Having failed to make a timely objection to the evidence at the time that it was presented and having personally developed [the challenged evidence] . . . [Crew Tile] waived any right that [it] might have otherwise had to challenge this evidence on appeal.”

And thus: Object if the basis offered for 404(b) evidence is inconsistent with its true purpose; object if the court does not properly limit the evidence; and object if the government improperly uses the evidence.

We’ve said it before and we’ll say it again: Object, object, object!

 Thanks to Tom Bartee for this post.

Can tapping a tire be a search? The Fifth Circuit says yes.

Sun, 02/24/2019 - 18:53

In United States v. Richmond, No. 17-40299, 2019 WL 491779 (5th Cir. Feb. 8, 2019), the Fifth Circuit recently held that the “relatively minor” act of tapping a tire qualifies as a search under the trespass-based approach detailed in United States v. Jones, 565 U.S. 400 (2012), when it is done in order to learn whether the tire contains contraband.  While patrolling on a highway in Texas, a state trooper observed that the tires on the truck Ms. Richmond was driving were “shaking,” “wobbly,” and “unbalanced.” The trooper initiated a traffic stop after watching the vehicle cross over the fog line onto the shoulder of the highway. While walking to the rear of the truck, he noticed that the bolts on the passenger-side rear tire “had been stripped as [if] they had been taken off numerous times.” At this point, the trooper “pushed on the tire with his hand,” which elicited a “solid thumping noise” and raised his suspicions that the tire may contain drugs. A later examination of the tires at a dealership revealed that they contained methamphetamine.
On appeal, Richmond argued that the trooper’s initial touching of the tire was a search, and that the search was not supported by probable cause. The court held that under a trespass analysis, “[the trooper’s] tapping of the tire was a search regardless of how insignificant it might seem.” The Fifth Circuit explained that under the trespass-based approach detailed in Jones, “a trespass ‘must be conjoined’ with ‘an attempt to find something or obtain information,’” i.e., investigatory intent, in order to constitute a search. This two-pronged approach “prevents a mere physical touching, such as when an officer leans on the door of a car while questioning its driver,” or other “incidental conduct,” from becoming a search.

In Ms. Richmond’s case, the court determined that the trooper’s conduct satisfied both prongs of the test outlined in Jones. The court reasoned that tapping the tire was a trespass similar to “attaching a GPS to the exterior of a vehicle,” as in Jones, because of the physical contact made with the vehicle in both instances. Because the trooper initiated the contact with the tire in order to “confirm his suspicion that it contained more than just air,” the tap became a search within the meaning of the Fourth Amendment. The court further explained that it was unlikely that the information that the trooper had when he made contact with the tire constituted probable cause to conduct the search.
 Ultimately, however, the court determined that the trooper did have “probable cause to believe that the tire posed a safety risk” based on his observations of the tire’s wobble and “the truck veering outside its lane.” Thus, the court held that public safety interests justified the search, and affirmed the district court’s judgment denying Richmond’s initial suppression motion. Although Richmond did not ultimately prevail in her appeal, the court’s conclusion that “the brief physical examination of the tire was subject to the Fourth Amendment under the recently revived trespass test” will benefit other defendants, and it serves as a reminder to consider other possible applications of the trespass-based approach outlined in Jones.  The decision can be found here

A bathrobe alone does not clothe someone with apparent authority

Sun, 02/17/2019 - 17:06
Apparent authority and consent from a third party may provide law enforcement with an exception to the warrant requirement where the officers reasonably believe that the third party has joint access or control over the property for most purposes. But the Seventh Circuit reminds us this past week in United States v. Terry that apparent authority’s exception cannot apply where officers veil themselves in ignorance by failing to inquire further.

In Terry, officers relied on the prompt verbal and written consent to search defendant’s residence obtained by a woman who answered the door at 10 a.m. in a bathrobe and looking sleepy. Prior to relying on her consent, the officers did not know who she was, what her relationship was to the defendant, why she was in the apartment, how long she had been in the apartment, or whether she lived there. "Sometimes the facts known by the police cry out for further inquiry, and when this is the case it is not reasonable for the police to proceed on the theory that ‘ignorance is bliss.’” (Quoting LaFave.) Conviction vacated.
And of course, even if the officers had gained the requisite information to demonstrate that the woman had authority over the residence, it would still be at issue whether she had authority over the containers searched therein. See, e.g., United States v. Salinas-Cano, 959 F.2d 861, 862 (10th Cir. 1992) (“[O]wnership and control of property does not automatically confer authority over containers within it.”) (citing United States v. Karo, 468 U.S. 705 (1984)).

Advocating for probation

Tue, 02/12/2019 - 18:10
When imposing a sentence, federal judges are required to consider the need for the sentence "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a)(2)(D).

And yet "imprisonment is not an appropriate means of promoting correction and rehabilitation." 18 U.S.C. § 3582(a). See also Tapia v. United States, 564 U.S. 319 (2011).

What's a federal judge to do?

Consider alternatives to imprisonment, that's what. And defense counsel now have a roadmap for encouraging the judge to do just that, with U. Chicago Law Professor Erica Zunkel's new article 18 U.S.C. § 3553(a)’s Undervalued Sentencing Command: Providing a Federal Criminal Defendant with Rehabilitation, Training, and Treatment in “the Most Effective Manner.”

A few lessons from the article:

First, federal law commands judges to consider the need for correctional treatment "in the most effective manner." BOP cannot provide that treatment. Again, federal law prohibits imposing a prison sentence for rehabilitation purposes. And BOP "faces numerous hurdles to providing 'the most effective' care for defendants due to overcrowding, staffing shortages, high medical costs, and budget cuts."

Second, defense counsel should present the sentencing judge with specific evidence and data contrasting correctional treatment relevant to counsel's client inside the BOP with correctional treatment available outside the BOP.

Third, defense counsel should show the sentencing judge how a non-prison sentence promotes other sentencing goals as well. For instance, even the Supreme Court has recognized that probation constitutes punishment, as it "substantially restrict[s]" a person's liberty. Gall v. United States, 552 U.S. 38, 48 (2007). And counsel can present studies to argue that a probationary sentence with correctional treatment can do a better job of deterring crime and protecting the public than can a sentence of imprisonment.

Hold the government to its burden

Sun, 02/10/2019 - 16:26

Recently, in United States v. Munksgard, No. 16-17654, 2019 WL 361432 (11th Cir. Jan. 30, 2019), the Eleventh Circuit issued an opinion which serves as a reminder to defense attorneys to hold the government to its burden and argue—after the evidence is closed—that the government failed to offer sufficient evidence at trial to prove that a bank is FDIC-insured. Although the defendant in Munksgard did not prevail in his appeal, the case was sufficiently close to provoke a detailed dissent and a strong word of warning from the majority to government prosecutors.  Mr. Munksgard was charged under 18 U.S.C. § 1014, which “criminalizes the act of knowingly making a false statement in order to obtain a loan from a bank that is insured by the FDIC.” Munksgard’s appeal raised the issue of whether the government had presented sufficient evidence to prove that the bank was FDIC-insured at the time of the offense.  As the dissent noted, the government provided no direct evidence that the bank was FDIC-insured in 2013 when the offense was committed. Instead, the government presented the following evidence at trial: (1) certification which indicated that the bank was FDIC-insured at the time of its charter in 1990, decades before the offense; (2) testimony that the bank was insured at the time of trial in 2016; and (3) testimony that the bank “isn’t required to ‘renew’ its FDIC certificate ‘every so often.’”  Although the court concluded, “albeit reluctantly,” that a reasonable juror could find that the bank was insured by the FDIC at the time of the offense, it noted that “[f]or reasons that leave us mystified, in cases involving federally insured banks—bank robbery, bank fraud, etc.—the government continues to stub its toe in seeking to prove the seemingly straightforward, but nonetheless jurisdictionally ‘indispensable,’ element of FDIC insurance.”  As the majority stated, “let this be a warning to federal prosecutors: You are (as the author’s mother used to say) cruisin’ for a bruisin’. Don’t apologize—do better.”  The decision can be found here.

Through the gateway of "actual innocence"

Sun, 02/03/2019 - 17:05
Actual innocence is one gateway to overcoming procedural bars to habeas relief set forth by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). That is, to prevent “a fundamental miscarriage of justice,” the Court has carved out a rule that an otherwise procedurally-barred petition under AEDPA is not barred where a petitioner can make a credible showing of actual innocence by (1) presenting new, reliable evidence, and (2) demonstrating by a preponderance of the evidence that it is more likely than not that not that a reasonable juror would have reasonable doubt.

Last week, in Finch v. McKoy, No 17-6518, 2019 WL 324667 (4th Cir. Jan. 25, 2019), the Fourth Circuit reaffirmed the essential nature of the actual-innocence gateway to habeas review.
In 1976, a North Carolina jury  convicted Charles Finch of first-degree murder of a gas station owner in a robber-gone-wrong. The state presented no physical evidence implicating Mr. Finch in the crime but rather relied on one eyewitness’s testimony and identification of Mr. Finch as the shotgun shooter. Nearly 40 years later, in 2015, Mr. Finch filed a federal habeas petition presenting new evidence in support of his wrongful conviction. 

The new evidence includes expert testimony regarding the due-process violation stemming from an impermissibly suggestive lineup scheme, which—in addition to new evidence that the murder weapon was not a shotgun but rather a pistol—tainted the credibility of the state’s star eyewitness such that, as the Fourth Circuit held, a reasonable juror would likely doubt that witness’s pretrial (and in-court) identification of Mr. Finch, as well as his account of the events.  
Despite this convincing new evidence, the district court nevertheless dismissed the petition as untimely under AEDPA. But, enter the Fourth Circuit to reverse after finding Mr. Finch sufficiently set forth new evidence that, under the totality of the circumstances, would “likely fail to convince any reasonable juror of his guilt beyond a reasonable doubt.” In doing so, the Fourth Circuit has granted Mr. Finch—now 80—the opportunity to challenge the veracity of his convictions and any miscarriages of justice at a hearing on the merits of his claims.
And for curious readers, the recording of oral arguments before the Fourth Circuit can be found here.

Kansas robbery is not a violent felony

Thu, 01/31/2019 - 17:32
We have blogged about Kansas robbery before (here and here), but it's been a while, and the Tenth Circuit did not publish an authoritative opinion on the issue until this week.

It's now official: Neither Kansas robbery nor Kansas aggravated robbery are violent felonies. They cannot serve as predicate offenses for ACCA purposes (or, for similar reasons, for career-offender or other like purposes).

So says the Tenth Circuit in United States v. Bong, No. 16-3323, 2019 WL 336512 (Jan. 28, 2019).

What to expect when you're expecting a prison term

Sun, 01/27/2019 - 18:30
Do you have clients who are headed to prison?

Don't let them go unprepared.

On February 21, 2019, from 3 p.m. to 5 p.m. at the Kansas City, Kansas, courthouse, US Probation will be holding its quarterly orientation program for people facing federal prison time. Family, counsel, and staff members are encouraged to attend. Participants may join by videoconference from the federal courthouses in Wichita, Topeka, and the Western District of Missouri.

Among other things, attendees will learn (or be reminded of):
  • What personal business to take care of before going to prison (utility bills, child support, student loans, pending charges & detainers);
  • How to self surrender;
  • What to take (and what not to take) to prison;
  • What programs are available in prison (educational, vocational, religious, mental health, medical);
  • What to expect with respect to visitation, phone calls, email, etc.; and
  • How federal prisons help prepare clients for release.

At one previous program, a young professional couple who met in a halfway house after each had spent many years in prison spoke about their experiences in an effort to allay the fears of incoming clients and their families. Their stories were encouraging, and their light-at-the-end-of-the-tunnel message was punctuated by the fact that they were celebrating the recent purchase of their first home.

The orientation will also be offered on May 9, 2019, August 8, 2019, and November 7, 2019 (same time & place).

Clients who are currently in custody and unable to attend may be able to attend a similar program at CCA while awaiting sentencing/designation.

Questions? Call Senior US Probation Officer Sara Valdez Hoffer at 913-735-2402.

Unpacking Anti-Stacking

Thu, 01/17/2019 - 14:28

Stacking occurs when an enhanced sentence for a second or subsequent conviction is imposed consecutive to a first-conviction sentence within the same case. Anti-stacking, under the December 21, 2018 First Step Act, means that the enhanced second-or-subsequent sentence applies only to sequential convictions. Crime, conviction, sentence; new crime, conviction, sentence.
Let’s unpack this.
The statute: Section 924(c)(1)(A)requires a sentence of not less than 5, 7 , or 10 years upon conviction. Subsection (c)(1)(C) required a sentence of 25 years (or sometimes life) for a “second or subsequent conviction.” With the amendment, subsection (C) applies only "after a prior conviction under this subsection has become final”. And subsection (D), then and now, requires any §924(c) sentence to run consecutively “with any other term of imprisonment imposed on the person.”
Let’s say your client was charged with three convenience store robberies (Hobb’s Act, 18 USC § 1951). And for each robbery, they were also charged with a related count of brandishing a weapon, per § 924(c).
Count 1: Robbery on August 1, 2018.Count 2: Brandishing a firearm (9 mm) during the robbery charged in Count 1.Count 3: Robbery on August 4, 2018.Count 4: Brandishing a firearm (same 9mm) during the robbery charged in Count 3.Count 5: Robbery on August 6, 2018.Count 6: Brandishing a weapon (same 9mm) during the robbery charged in Count 5.
Before the Act, the law required that the sentences for Counts 2, 4, and 6 run consecutively to the robberies and to each other (the robberies can be concurrent to each other). Andthe law dictated that counts 4 and 6 were “second or subsequent convictions”, consecutive to the first conviction, Count 2. That was stacking. 
Let’s assume the sentences for the robberies were 5 years each, to run concurrently with each of the other robberies. Pre-Act, the sentences would look like this:
5 + 7 + 25 + 25  = 62 years
5 years (for robbery counts 1,3, and 5, concurrent) consecutive to 7 years (first § 924(c), Count 2) consecutive to 25 years(second § 924(c), Count 4) consecutive to 25 years (subsequent § 924(c), Count 6) = 62 years.
Stacking was absurd. But it happened, even with no criminal history, and it was mandatory, even if the sentencing court believed it to be “unjust, cruel, and even irrational.” Prosecutorial discretion, unhinged, and endorsed by the Tenth Circuit and U.S. Supreme Court. Prosecutors used stacking as a crushingly heavy hammer in plea negotiations.
Post-Act, subsection (C) applies only after a prior conviction becomes final, that is, in a separate preceding case, not within the same case. But the mandatory consecutive language of subsection (D) is unchanged. So the sentences would look like this:
5 + 7 + 7 + 7 = 33 years
Still a heavy hammer for the prosecution.  
The change to § 924(c) is not retroactive. It will “apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.”
-- Melody

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.