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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger424125
Updated: 37 min 4 sec ago

Trial Series: How to subpoena federal agents

Sun, 06/25/2017 - 18:53
At some point, you will need to subpoena a federal agent to testify at trial. Usually this will occur when: (1) a witness gives a statement to the agent but (2) the witness denies making the statement. You cannot impeach the witness with the agent’s written report (unless you can prove that the witness adopted it, which is rare) because the report is the agent’s statement — not the witness’s. To be able to prove that the witness said something different to the agent, you will have to call the agent to the witness stand. And to do that, you will need to subpoena that agent.

Subpoenaing a federal agent is more complicated than subpoenaing the usual witness. That is so because of a United States Supreme Court case from 1951, United States ex rel. Touhy v. Regan, which held that executive-department agencies could validly promulgate regulations that restrict their employees from testifying. 340 U.S. 462 (1951). Nearly every agency now has Touhy regulations scattered about the Code of Federal Regulations. If you do not comply with those regulations, the court will quash your subpoena.The first step is to find which CFR applies, which turns on which agency the witness belongs to. Here are some of the more common agencies you might need testimony from, along with the corresponding CFRs that cover that agency:
Agency CFRs Department of Homeland Security (including Immigration & Customs Enforcement) 6 C.F.R. §§ 5.42 — 5.49 Department of Justice (including Federal Bureau of Investigation & Drug Enforcement Administration) 28 C.F.R. §§ 16.21 — 16.29
These regulations spell out who to serve. For instance, for a DHS agent, you must serve your demand on its Office of General Counsel. 6 C.F.R. § 5.43(a). For a DOJ agent, you serve the demand on the Assistant United States Attorney handling the case. 28 C.F.R. § 16.23(c). These regulations also set out how to make your demand. For a DHS agent, you must specifically put forth, in writing, the nature and relevance of the information you seek. 6 C.F.R. § 5.45(a). For a DOJ agent, on the other hand, you must supply a written statement, by affidavit if feasible, setting forth summary of testimony sought. 28 C.F.R. § 16.23(c).

Finally, these regulations set out what the agency will consider in deciding whether to permit the agent to testify or produce documents. For DHS agents, the factors are contained in 6 C.F.R. § 5.48, and for DOJ agents they lie in 28 C.F.R. § 16.26.

Practically speaking, you should:

1. At least 45 days before trial, obtain a trial subpoena under Rule 17(b) for any agent that you might need to impeach a witness.

2. Draft a letter that contains: (a) the request for testimony or documents that complies with the applicable regulation (i.e. affidavit, etc.); (b) an argument as to why the agency should allow the testimony or release the documents that corresponds to the factors the agency is supposed to consider in making its decision; and (c) a deadline for their response.

3. Serve the subpoena and the letter on the appropriate official.

What happens if the agency denies your request? Or never responds?Stay tuned . . . . ----Branden Bell

Trial Series: Dying declarations

Tue, 06/20/2017 - 19:44
In which we assume that dying is stressful.

The rationale for the dying declaration hearsay exception is that “no person, who is immediately going into the presence of his Maker, will do so with a lie upon his lips.” That notion seems problematic in a nation where 1 in 4citizens are atheists, presumably unconcerned with the impact of a falsehood on their chances in the afterlife.But the more profound problem with presuming the reliability of dying declarations is how it ignores what happens to a brain under stress. To talk about that, we have to talk about the physiology of the brain. Let’s start with the amygdala.So, hi! Thanks for staying. Anyway, the amygdala. It’s the Chaos Muppet of the brain (think Cookie Monster). The amygdala evaluates incoming stimuli for emotive content, tells us when we need to freak out, and helps us freak out by flooding the brain with the stress hormone cortisol. Acting as a governor on the amygdala is the prefrontal cortex. The prefrontal cortex is the executive center of our brain, regulating decision-making and judgment (think Kermit). The prefrontal cortex is designed to stop the amygdala from overreacting to every damned thing, balancing our emotional responses. But the prefrontal cortex, awash in cortisol, can’t control the amygdala in highly stressful situations. When the prefrontal cortex gets overwhelmed by cortisol, “quite simply, we lose it.”Dying brains don’t carefully calculate the downside of displeasing their Maker with a falsehood. The precipice of death is not a placid, reflective place where we carefully calibrate the truth of our words. Instead, awash in stress hormones, a dying brain is likely to cloud objective truth.

While dying declarations may be admissible as hearsay, they aren’t probative. Argue the science in support of a Rule 403 objection.

---Kirk Redmond

Where's Waldo's cell phone?

Sun, 06/18/2017 - 14:05
More specifically, what must the government do before it can track Waldo's cell phone? The United States Supreme Court will finally answer that question next term, in Carpenter v. United States. Here is the SCOTUSblog page if you want to follow along. The question presented is: 
Whether the warrantless seizure and search of historical cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days is permitted by the Fourth Amendment. With Mr. Carpenter represented by the ACLU, and amicus briefs (so far) by the Electronic Frontier Foundation and the Cato Institute, the case should be well lawyered.

By the way (as those of you who keep up with our Issues Pending summaries know), the Tenth Circuit has a similar claim pending in United States v. Thompson, No. 15-3313 (argued May 10, 2017).

Be sure to preserve this claim if you've got a case involving the warrantless search and seizure of these kinds of cell-phone records.

Let's talk about forensic science: week one

Thu, 06/15/2017 - 21:47
Your friendly blog post writer was fortunate enough to attend the National Forensic College last week at Cardozo Law school in New York. The college provided a six day intense focus on forensic science issues ranging from DNA to digital evidence. So the Thursday spot on the blog will be used to share a few of the very helpful tips that were passed on during this program.

We start with a topic that has been mentioned before, but deserves greater discussion - the PCAST report. As we discussed back in October, the PCAST report was prepared by leading scientists and engineers for the purpose of answering questions created by the 2009 National Resource Counsel report on strengthening forensic science in the United States. As we know now, this administration is not interesting in answering those questions or strengthening forensic science.

Everyone should at least read the executive summary of the report. It is 20 pages and does a great job summarizing their findings. For example do you have a case where a bitemark is used as evidence? PCAST is not impressed: "Bitemark analysis is a subjective method. Current protocols do not provide well-defined standards concerning the identification of features or the degree of similarity that must be identified to support a reliable conclusion that the mark could have or could not have been created by the dentition in question."

This week starts with an easy but important concept from those early pages - the difference between foundational validity and validity as applied. Foundational validity establishes that the scientific method used is repeatable, reproducible, and accurate. That means that a person performing the test can perform the test the same way multiple times and get the same result. It also means that a different person can do the same test the same way and get the same result. Finally, it means that result is accurate. If all three are met, then a certain method can, in principle, be reliable. This corresponds with the legal requirement in Rule 702(c) of using "reliable principles and methods."

Validity as applied means that the method has been reliably performed in practice. This means that a foundationally valid method can still be inadmissible if the person performing the test does not properly implement an otherwise reliable method. This corresponds with Rule 702(d) while requires an expert to "reliably apply the principles and methods to the facts of the case."

Keep these concepts in mind as we discuss some tips from specific areas of forensic science in the next few weeks.

Innocent until shackled

Tue, 06/13/2017 - 20:40
When you think of the term innocent, what image comes to mind? If you are like me, you think babies or puppies (maybe kittens if you’re a cat person). The thing I have never associated with that word was full body shackles. In a court system that stands on the phrase “Innocent until Proven Guilty,” one would assume that innocent people should not be brought to court in full body shackles. The Court of Appeals for the Ninth Circuit has just taken on this problem in United States v. Sanchez-Gomez.

Four defendants petitioned for writs of mandamus to challenge a district wide policy for shackling all pretrial detainees without any form of individual determinations. Although they did not get the mandamus relief (mainly because the policy was not in effect at the time), the Court of Appeals did slap the district court’s hands a bit.  The policy in question came about as a recommendation from the US Marshals Service. The district court deferred to the Marshals’ recommendation, and determined that all pretrial detainees would appear in shackles. The en banc court applied Gerstein v. Pugh, 420 U.S. 103 (1975), to exercise its supervisory power. Even though all of the defendants’ cases had ended and the policy was no longer in effect, the en banc court seemed to be on a mission to send a message. “A presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom, not like a bear on a chain.”

The court’s bottom-line holding:
We now clarify the scope of the right and hold that it applies whether the proceeding is pretrial, trial, or sentencing, with a jury or without. Before a presumptively innocent defendant may be shackled, the court must make an individualized decision that a compelling government purpose would be served and that shackles are the least-restrictive means for maintaining security and order in the courtroom. Courts cannot delegate this constitutional question to those who provide security, such as the U.S. Marshals service. Nor can courts institute routine shackling policies reflecting a presumption that shackles are necessary in every case.Interestingly enough, this decision not only had a few dissenters but also creates a circuit split. The dissent’s main problem was the lack of authority to make this decision. They argued that the case was moot and did not qualify for an exception. All in all, they thought the majority had overstepped its boundaries.Given the new circuit split, maybe the Supreme Court will take up this cause and send a message to the country that shackles taint the appearance of innocence.

---Contributed by Doretta Goolsby, UMKC Law 2018

Not a Crime of Violence: KS Dangerous Weapon Agg Robb

Sun, 06/11/2017 - 22:37
Committing a robbery with a dangerous weapon; it sure sounds like a crime of violence. But not to Jeff Griffith, a Wichita CJA panel lawyer. Last Friday, Jeff persuaded Judge Melgren that robbing someone in Kansas while possessing a deadly weapon was not a crime of violence. And he was right. 
Jeff asked the Court to follow United States v. Parnell, where the Ninth Circuit decided that Massachusetts armed robbery is not a violent felony. Why? Because in Massachusetts, robbery can be committed by minimal, non-violent force. And the “armed robbery” component of the statute? Well, in Massachusetts, the armed robbery statute does not require a weapon be used or displayed, or even that the victim be aware of it. It is enough that the robber have a knife in his back pocket, which does not convey a threat of force to the victim.
And you know what? Kansas aggravated robbery works the same way. Just like Massachusetts armed robbery, Kansas aggravated robbery requires only that the robber be "armed with" a dangerous weapon, not that he use it or that the victim be aware of its presence. We know that Kansas robbery is not a crime of violence, and we know that possessing a dangerous weapon is not a crime of violence. (Scroll down to USSG § 4B1.2, Application Note 1.) Adding two things that aren’t crimes of violence together does not produce a crime of violence.

The case is United States v. Edward Walker, D.Kan. 16-cr-10015-EFM, D.E. 47. We’ll send around a pdf of Judge Melgren’s order tomorrow. Congratulations, Jeff.

We get by with a little help from our friends

Thu, 06/08/2017 - 22:18
It's hard out there for a public defender. Between defending our clients and defending our work ("How can you represent those people?"), sometimes it feels like we're always, well, on the defensive.

And so we are grateful when someone takes time out to recognize us and cheer us on. We at the Kansas Federal Public Defender Office have been lucky to receive two particularly supportive and inspiring visitors to our office this week: veteran trial lawyer and defender trainer Anthony Natale from the Miami, Florida Federal Public Defender Office, and Gideon's Promise* founder Jonathan Rapping.

Thank you, Tony and Jonathan!

*Gideon's Promise trains and supports public defenders. You can find links to many of Jonathan's articles about public defending and criminal justice here.

Confidential-informant discovery

Tue, 06/06/2017 - 18:04
Last week we blogged about a district court suppression order, promising to share more goodies from that same order.

Those goodies are several discovery orders relating to a confidential informant, including the AG's CI guidelines in effect at the time the CI was used, and CI suitability reviews and certain other internal documents relating to the CI.

The district court rejected most of the government's relevance, deliberative-process, and overbreadth objections, and carefully balanced the government's claimed "CI safety" interests against the defendant's trial-preparation interests.

Take a look at this order for (1) inspiration for what specific discovery requests to make with respect to a CI; and (2) a step-by-step argument for why the requested items are relevant and discoverable.

"Drug addiction is generally mitigating . . ."

Sun, 06/04/2017 - 21:19
Continuing with the neurological theme of the last post, there is powerful scientific evidence establishing the long-term effects of methamphetamine addiction, evidence that is relevant to the "history and characteristics of the defendant" under 18 USC sec. 3553(a)(1).

Remarkably, some jurists still debate whether drug addiction is a disease or a product of free will. This distinction often bears on issues of culpability and whether our client is compassion-worthy. In United States v. Hendrickson, 25 F.3d 1166 (N.D. Iowa 2014), Judge Mark Bennett wrote a compelling and detailed sentencing decision that describes this split and "to explain my view that drug addiction is generally mitigating, especially in cases, like this one, where the defendant is both young and has been addicted to drugs throughout adolescence and most of his early adulthood."

Judge Bennett has been a frequent critic of mandatory minimums for low-level addicts. From yesterday's CNN report,
Too often, Bennett says, low-level nonviolent drug addicts dealing to feed their habit end up being sentenced like drug kingpins. . . . "I think it's a miscarriage of justice," Bennett says. This article compared former Attorney General Eric Holder's more compassionate approach to low-level drug offenders with current AG Jeff Sessions' call for the most serious charges and the most serious penalties available. Here is Larry Leiser, President of the National Association of Assistant U.S. Attorneys, defending the harsh policy as helping “young people who see people in the community wearing heavy gold and chains and hot cars as a result of their participating in the distribution of these drugs, as opposed to going out and earning an honest living.”

Science dismantles this primitive idea that addiction is just a moral flaw or lack of willpower. Sometimes the court has room for discretion, and in those instances, science is on our side.  The Hendrickson opinion is loaded with references to scientific and government studies on the neurological implications of addiction, e.g. Steven E. Hyman, The Neurobiology of Addiction: Implications for Voluntary Control of Behavior, 7 Am. J. Bioethics 8, 9-10 (2007).  Additionally, see Meredith Cusick, Note, Mens Rea and Methamphetaime: High Time for a Modern Doctrine Acknowledging the Neuroscience of Addiction, 85 Fordham L. Rev. 2417, 2427 (April 2017); and Holley, Mary, Ph.D., How Reversible Is Methamphetamine-Related Brain Damage?, 82 N.D.L. Rev. 1135 (2006); and this from the 2016 (Obama era) Surgeon General's Report, Facing Addiction in America ("Addiction to alcohol or drugs is a chronic but treatable brain disease that requires medical intervention, not moral judgment.").

Postscript: Judge Bennett imposed a lower sentence (31 months) than the prosecutor requested (high end of 46 months) and lower than the defense attorney requested (low end of 37 months).

-- Melody (with thanks to Colorado AFPD Veronica Rossman). 

Constructive possession & 404(b) evidence

Sun, 06/04/2017 - 20:44
Your client is charged with constructive possession of guns and marijuana (with intent to distribute) that were found in his shared house behind a deadbolt-locked bedroom door. Your client's prints were not on any of the drug packaging or guns. He had no key to the lock on the bedroom door. He admits that the house reeked of marijuana, but he says the drugs and guns were not his, and he did not have access to them.

Of what relevance are your client's prior convictions for possession of marijuana and possession with intent to distribute marijuana?

Very little, said the Fourth Circuit last week in a must-read 404(b)-treatise case, reversing the defendant's gun and drug convictions.

Just some of the highlights (note how the court walks through both the relevance and prejudice prongs of the analysis with respect to each category of prior conviction):

The defendant's prior possession conviction was inadmissible to prove his intent to distribute: "[A] defendant's prior conviction for possession of a drug is not relevant to establishing the defendant's intent to distribute a drug at a later time, absent some additional connection between the prior offense and the charged offense." Possession and distribution are "distinct acts" with different intents, purposes and risks.

The defendant's prior possession conviction was relevant to prove his knowledge that there was marijuana in the house (the whole house smelled of marijuana), but he did not contest his knowledge, and the prejudicial effect of the prior conviction far outweighed its probative value: "Due to the lack of evidence connecting Defendant to the drugs inside the locked bedroom and the minimal probative value of the prior possession conviction to establish Defendant's knowledge that the bedroom contained marijuana, there is a strong and unacceptable likelihood that the jury concluded Defendant 'had a propensity for [drug] trafficking and convict[ed] on that basis alone'—the precise result Rule 404(b) forbids."

The defendant's prior possession-with-intent-to-distribute convictions lacked factual similarity and temporal proximity to the charged conduct, and were not relevant to prove his intent to distribute. And, as with the possession conviction, their relevance to prove his knowledge of the presence of marijuana was outweighed by their prejudicial effect. Indeed, "Defendant's prior possession with intent to distribute convictions were arguably even more prejudicial than his prior possession conviction because ‘prejudicial impact is only heightened when character evidence is admitted in the form of a prior criminal conviction, especially a prior conviction for the same crime as that being tried.’"

Trial Series: Challenging Hearsay with Neuroscience

Mon, 05/29/2017 - 19:45

Federal Rule of Evidence 803 sets out three hearsay exceptions for spontaneous events: present sense impression, excited utterance, and then-existing condition. The rationalefor these exceptions is that the spontaneous statements are reliable because a person is unlikely to fabricate lies (which presumably take deliberate reflection) while her mind is preoccupied with the stress of an exciting event.
But for lots of complicated reasons explained here(click the link for a primer on peritraumatic dissociation and elevated cortisol levels in the amygdala), that’s not how the brain works. First, “it's not true that people can't make up a lie in a short period of time. Most lies in fact are spontaneous.” Second, the emotional stress attending a crime can fragment and corrupt memories. The assumptions behind the spontaneous event hearsay exceptions are exactly backward. Spontaneity does not enhance reliability; it may compromise it.
Courts are beginning to recognize the fallacy of the rationale behind the spontaneity hearsay exceptions. “As with much of the folk psychology of evidence, it is difficult to take this rationale entirely seriously, since people are entirely capable of spontaneous lies in emotional circumstances…It is time the law began paying attention to such studies.” So, if the government’s case relies on a spontaneity exception, ask the court to view that evidence in light of the science.
-- Kirk

Evidence suppressed: no reasonable suspicion for traffic stop

Thu, 05/25/2017 - 23:23
We all know that is a traffic infraction to turn without properly signalling in advance, but is it also a traffic infraction to signal in advance but then not turn? The answer is no, at least according to a recent decision in the District of Kansas .

In United States v. Perez-Madrigal, the officer stopped the defendant for that exact reason. He claimed at suppression hearing that he had done the same thing in the past and since nobody objected he assumed it was fine. The government also claimed that the stop fell under the reasonable mistake-of-law doctrine. However, the government was unable to point to a case or statute that supported such a reasonable belief.

The government also claimed that the exclusionary rule should not apply in this context. Not so says the district court. The officer testified that he was trained that this type of stop was acceptable and had performed such a stop multiple times. So, if the exclusionary rule exists to deter officer conduct - "the societal benefits of deterring repeated instances of unlawful traffic stops outweigh the substantial social costs of suppressing the evidence seized as a result of the traffic stop."

Kudos to Branden Bell of the FPD for the suppression win. But the opinion also has some other, blog worthy issues in it. Stay tuned to find out what.....

City misdemeanors do not trigger federal gun prohibition

Tue, 05/23/2017 - 18:51
So sayeth the Tenth Circuit this week in United States v. Pauler:
The term "misdemeanor crime of domestic violence" is defined in the pertinent statute as "a misdemeanor under Federal, State, or Tribal law" that "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by . . . a person similarly situated to a spouse, parent, or guardian of the victim." 18 U.S.C. § 921(a)(33)(A). The district court denied Defendant’s motion to dismiss the indictment for failure to state an offense, holding that Defendant violated § 922(g)(9) because he possessed a firearm in 2014 after having been convicted in 2009 of violating a Wichita, Kansas municipal domestic battery ordinance by punching his girlfriend. The sole issue before us in this appeal is whether a misdemeanor violation of a municipal ordinance qualifies as a "misdemeanor under . . . State . . . law" when viewed in the context of a statutory scheme that clearly and consistently differentiates between state and local governments and between state statutes and municipal ordinances. Applying well-established principles of statutory interpretation, we hold that it does not, and we accordingly reverse and remand with instructions for the district court to vacate Defendant’s federal conviction.

Better sentences with open pleas.

Sun, 05/21/2017 - 21:39
Taking up where the last post left off . . . plea agreements and appellate waivers. The prosecution often insists on broad-ranging appellate waivers when the parties enter a plea agreement. That is one reason our default position should be open (or blind) pleas rather than plea agreements. This default position is even more compelling since AG Sessions has directed the USAOs to seek the most serious punishment available. Not much room for meaningful negotiation there.

Another pretty good reason is that our clients receive lower sentences with open pleas. The numbers bear this out. The U.S. Sentencing Commission, for all of its other faults, is an excellent source of sentencing data. An analysis of the raw data shows:

     Open pleas accounted for almost a quarter of all federal case resolutions in 2015.

     Overall, opens pleas resulted in lower sentences.

     Plea agreements resulted in higher sentences.

The raw data comes from the Sentencing Commission, but the analyses is provided by  Alan Ellis, Esq., and Mark H. Allenburg, in the Westlaw Journal, White Collar Crime: Expert Analysis,Vol. 31, Issue 7, March 2017. This article has more details on fraud and tax sentences, as well as helpful graphs like this one. The raw data should be available to analyze other specific offenses, as well.   


Supreme Court update: Does a guilty plea prevent an attack on the constitutionality of the statute of conviction?

Thu, 05/18/2017 - 22:25
One of the few criminal related cases set for argument on the October docket is Class v. United States, a case that asks whether a guilty plea prevents the defendant from attacking the constitutionality of the statute of conviction. Or, as the brief for Mr. Class states the issue:
Whether a guilty plea inherently waives defendant’s right to challenge the constitutionality of his statute of conviction. Mr. Class was convicted of carrying or having a gun readily accessible on the Capitol grounds. He initially litigated the constitutionality of the statute in district court, without success. He eventually entered a plea agreement that waived his right to appeal the sentence and his right to collaterally attack his conviction or sentence. He appealed to the D.C. Circuit which affirmed his conviction based on the plea waiver. The D.C. Circuit noted the appeal waiver did not contain an "explicit waiver of appeal rights . . . as to alleged errors in the indictment or in proceedings before the sentencing." However, the court held that the plea itself inherently waived Mr. Class' right to attack the constitutionality of the statute.

In his brief, Mr. Class argues that prior Supreme Court cases such as Blackledge v. Perry and Menna v. New York answer the question as to whether the plea inherently waives such a right - and the answer is no. Blackledge permitted such an attack after conviction in the double jeopardy realm and Menna allowed such an attack in a vindictive prosecution claim. If permitted there, why should the defendant be limited when the attack is for unconstitutionality of the statute of conviction?

With all of the recent discussion of plea waivers we had here, and here this case is a good reminder of what rights are lost when a guilty plea is entered. It will be interesting to keep an eye on the outcome of this case and see to what extent a plea really waives appellate rights. Plus it is a gun rights case so we know a separate opinion from Justice Thomas is coming.

Trial Season

Sun, 05/14/2017 - 22:04
Last Friday, Attorney General Jeff Sessions issued a memo establishing  new and more strident prosecution policies. The highlights (or low points) include:

  • Prosecutors should charge and prove the "most serious, readily provable offense." 
  • Most serious offenses are those that carry the "most substantial guidelines sentence, including mandatory minimum sentences."
  • Variance from this policy requires supervisory approval and must be "documented in the file."
  • Recommendations for guideline variance or departures also require supervisory approval and documentation. 
  • Former AG Eric Holder's  2013 and 2014 memos were expressly rescinded; these encouraged conscientious application of harsher charging and sentencing decisions and restricted the use of certain mandatory minimum sentences (e.g., 851s).
The memo is after the jump.

Mr. Holder understandably deemed it an "unwise and ill-informed" reversal. But some argue there is room for a more hopeful reading. Local prosecutors are to exercise discretion, "with the goal of achieving just and consistent results" and "should in all cases seek a reasonable sentence under the factors in 18 USC sec. 3553." Reasonable prosecutors may continue to prosecute reasonably.  

Mr. Sessions acknowledged as much in his recent remarks to a law enforcement audience:
And I trust our prosecutors in the field to make good judgements. They deserve to be unhandcuffed and not micro-managed from Washington. Rather, they must be permitted to apply the law to the facts of each investigation. . . .  I have given our prosecutors discretion to avoid sentences that would result in an injustice.Reason for hope? It is certainly worth invoking Mr. Sessions' face-value statements in negotiations.  

For now, though, trials may be more common. This could be a good thing; in the last couple of years, as part of some retroactive litigation,  we have reviewed far too many plea agreements (with appellate waivers) that resulted in life or near-life sentences, for little or nothing in return. Can't really do much worse at trial. Maybe this is a chance to change our approach. As Rahm Emanuel observed, crisis is opportunity: "You never let a serious crisis go to waste. And what I mean by that it's an opportunity to do things you think you could not do before." 

In the coming  months, this blog will devote some space to trials: evidence, tactics, training.  Please give us your feedback, comments are welcome either on the blog or by email. Look for some guest bloggers. And if you have ideas to share, please let us know. 

-- Melody


Sentencing news

Sun, 05/14/2017 - 18:48
Where do you get your sentencing news? The United States Sentencing Commission has a new resource: Case Law Quarterly. As the Commission describes it, "Case Law Quarterly provides brief summaries of select appellate court decisions issued each quarter of the year that involve the guidelines and other aspects of federal sentencing."

At a slim six pages, the first issue is just the right size to print and read on the airplane or in the waiting room of the doctor's office. My only complaint: The cases are organized by circuit rather than by subject matter. But even then, it's a nice compilation of guidelines and other sentencing cases, and you can see at a glance (in the first sentence of each entry) which cases resulted in sentencing reversals.

What does the government need to establish importation under USSG § 2D1.1(b)(5)?

Thu, 05/11/2017 - 21:53
   One of many enhancements under USSG 2D1.1 involves a two level bump for amphetamine or methamphetamine offenses that "involved the importation" of the drugs or certain chemicals. USSG § 2D1.1(b)(5).

   But what does the government need to prove to establish the offense involved importation? Does the government have to establish that the defendant knew the drugs at issue were imported? A recent Ninth Circuit case may create a circuit split on this question. In United States v. Job the Ninth appears to reject a strict liability rule from a Fifth Circuit decision, United States v. Serfass, which held "that the enhancement under § 2D1.1(b)(5) applies irrespective of whether the defendant knew that the possessed methamphetamine had been unlawfully imported."

   The  Job court bases their decision on the fact that the district court "made no determinations about the scope of the jointly undertaken criminal activity as required by the Sentencing Guidelines." So the question as to what exactly the government needs to prove seems to be an open question, even in the Ninth Circuit. One question is clear - this enhancement needs to be objected to, especially when the government simply puts on evidence that the drugs were imported without additional proof.

Immigration consequences? Check once; check twice; check again

Sun, 05/07/2017 - 19:21
A Jamaican citizen and lawful permanent US resident was charged in federal court with trafficking in counterfeit goods.

His appointed criminal-defense lawyer immediately realized the need to research the deportation consequences of any plea. Counsel dutifully contacted an immigration lawyer. That lawyer recommended a plea under a subsection of the criminal-counterfeiting statute that she believed would not expose the client to deportation. The defendant entered the plea and was sentenced to prison for 364 days.

But the lawyers both relied on the wrong version of the statute.

The version that applied to the defendant subjected him to mandatory deportation. As a result, the defendant spent more time in ICE custody than he did serving his prison sentence. The Fourth Circuit finally granted him habeas relief on ineffective-assistance-of-counsel grounds, in an opinion issued last month.

Lesson learned: Check immigration consequences. Check again. Check again.

It was my understanding that there would be no math . . .

Thu, 05/04/2017 - 21:18
I like, many of you went to law school to avoid doing math. The bad news is there is some very helpful information available that might require some math. Blame the Sentencing Commission. The Commission tracks and posts statistics online regarding the sentences involved in thousands of cases. And you can use that data to, for example, make an argument for a less than guideline sentence where certain courts generally follow the guidelines. After all, if the statistics support that more judges are giving lower than guideline sentences, some judges who feel bound by the guidelines may feel more comfortable giving a less than guideline sentence.

We suggest you follow the link and spend some time getting comfortable with the information and think a little how you can use those statistics to get a better plea or to support a sentencing memorandum for a particular client. Maybe math will become your friend!