Kansas Federal Public Defender's Blog

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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger545125
Updated: 1 hour 28 min ago

"Clearly, a person could not have been hiding in the toilet tank."

Tue, 11/06/2018 - 12:57
The Supreme Court has cautioned that protective sweeps must be "narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Maryland v. Buie, 494 U.S. 325, 327 (1990).

Consequently---unless the police are looking for a very tiny person or at a very large toilet tank---leaning over and looking into an open toilet tank exceeds the scope of a protective sweep. So said the district court in United States v. Brown, 2018 WL 5603541 (S.D. Fla. Oct. 30, 2018):

"The evidence indicates that when Detective Perdomo entered the bathroom he went to the bathtub and pulled back the curtain. Upon seeing the lid to the toilet tank in the bathtub, Detective Perdomo looked into the open toilet tank and saw a gun at the bottom of the toilet tank. Detective Perdomo could not have seen the gun at the bottom of the toilet tank without leaning over and looking into the tank. This action, however, exceeded the scope of a protective sweep. Clearly, a person could not have been hiding in the toilet tank. Thus, after checking behind the shower curtain to ensure that no one was hiding in the bathroom, the protective sweep in the bathroom should have been done. Consequently, Detective Perdomo’s look into the toilet tank was an improper search."

(Unfortunately for the defendant in this case, a subsequent search warrant for the house constituted an independent source for discovery of the gun. Motion to suppress denied.)

Good read--America's Other Family-Seperation Crisis

Sun, 11/04/2018 - 21:24
Sarah Stillman’s article in the November 5, 2018 issue of the New Yorker is a must read for anyone representing a parent—especially a mother living in poverty. Stillman’s expose focuses on Tulsa, Oklahoma (and the commendable efforts of She Still Rises—a holistic defense effort led by the founders of the Bronx Defenders), but its painful revelations on the interlacing in the criminal justice system of poverty, parenthood, and generations of racial discrimination reverberate to every corner of our nation.

The permanent and devastating collateral ramifications that a criminal conviction and corresponding sentence will have on our clients' children are well documented. So, too, are the reasons why a low-income parent may have a slew of prior convictions, as Stillman's article highlights.

Importantly, the Tenth Circuit has repeatedly acknowledged that sentencing courts are mandated under § 3553(a) to consider family circumstances as part of a defendant's "history and characteristics" when fashioning the appropriate sentence. See, e.g., United States v. Vargas-Ortega, 736 Fed. Appx. 761 (10th Cir. 2018) (unpublished) (reversing and remanding for resentencing where the district court erred in stating it could not vary downward based on family circumstances). It is therefore our duty when it comes to sentencing to fully investigate and to persuasively present our clients' story to the court. And for our clients who are parents, part of that presentation must necessarily includes discussion on the unquantifiable, lasting effects that a criminal sentence will have on our clients' children and family structure. For another good discussion on the "invisible victims of mass incarceration," as well as the use of family impact statements at sentencing, see Amy B. Cyphert Prisoners of Fate: The Challenges of Creating Change for Children of Incarcerated Parents, 77 Md. L. Rev. 385, 426 (2018). 


These things are going to be happening to our clients now. (The new phone book is finally here! update).

Thu, 11/01/2018 - 22:16
A few months ago we informed you that the Sentencing Commission had adopted some changes to the 2018 guidelines. We were (of course) ahead of the game. Although the Commission had agreed on the amendments, they were not to go into effect until (checks watch) TODAY!

That is right, today the 2018 Sentencing Guidelines are now in effect. And since they are likely to impact some of your clients, lets discuss some of the key changes:

1) There are a number of fentanyl related changes, including a four level enhancement for misrepresenting another drug or mixture that contains fentanyl. See § 2D1.1(b)(13).

2) A number of grounds for departure in synthetic  cases have been added, with an acknowledgment of the potential differences in potency among different synthetic drugs.

3) "Marijuana equivalency" is gone. Now called Drug Conversation Table.§ 2D1.1(c)(1).

4) Acceptance of responsibility commentary attempts to clarify that an objection, even if a losing one is not necessarily frivolous in order to lose acceptance of responsibility.  § 3E1.1.

5) Judges should consider sentence other than imprisonment for offenders in Zone A and B with certain characteristics.  § 5C1.1

There are other things in there (including some changes to 2L and some tribal court conviction related stuff. The linked publication from the sentencing commission summarizing the changes is only 39 pages.

This is worth getting excited about!

Hunch after disproved hunch is not reasonable suspicion

Tue, 10/30/2018 - 13:18
Based on a tip from a "disappearing informant," officers hunched that a man they were surveilling was carrying paper bags of drugs into his garage. They stopped the man and frisked him. Nothing. They searched his van. Nothing. They searched his garage (including the paper bags). Nothing.

Despite their first hunch having been disproved, on a second hunch, the officers continued to question the man, eventually securing his "consent" to search his house, where they found drugs and a gun.

This evidence should have been suppressed, said the Seventh Circuit in United States v. Lopez, a well-analyzed opinion. A few highlights:

---"Requiring police to corroborate tips from identified but unproven informants is an important protection of individual liberty." The opinion includes a terrific, extended discussion of this requirement. While reasonable suspicion is a low bar, that bar has not slipped so low as to allow unreliable tips like this one to trigger the humiliating, involuntary seizures and sometimes violent encounters that we justify under the bland and familiar phrase 'Terry stops.'"

---"Instead of doing the police work required to substantiate the tip, the officers pounced as soon as they saw Lopez leave his garage." This stop violated the Fourth Amendment.

---"The authority to frisk is not automatic in a drug investigation." This frisk was illegal.

---"[N]o reasonable person in Lopez's shoes would conclude that one officer's words [you're free to go] meant more than eight officers' actions [functionally blocking his exit by their physical presence and by retaining his van, car keys, and cell phone]."

All in all, the Fourth Amendment violations here---a bad initial stop that was unreasonably continued---undermined the validity of Mr. Lopez's consent to search his house.

Second Chair applications due December 1

Sun, 10/28/2018 - 14:35

We are currently accepting applications for our fifth term of the Second Chair Program, which will be a year-long program taking place in Kansas City, commencing in January 2019.
The Second Chair Program is a FPD training and mentoring program for attorneys who want to practice in federal court or apply for the CJA panel, but may lack the requisite experience. The program includes intensive monthly orientations and workshops that, over the course of the year, will cover all phases of a federal criminal case, including in-depth coverage of the sentencing guidelines. Having been a Second-Chair participant myself, I can attest that the program provides invaluable experience for anyone interested in practicing federal criminal defense and inimitable insight into practicing in the District of Kansas.  
Attendance at the monthly sessions is mandatory for continued participation in the program and for consideration for panel appointment. Additionally, each participant will be assigned to a more experienced mentor attorney to shadow on selected cases. Participants should plan to commit about 8-10 hours per month. Materials and compensation ($70 per hour) are provided courtesy of the Bench-Bar Committee. Participants may also be requested to assist current FPD clients, pro bono, with representation on basic legal matters related to their criminal case. Only a limited number of full participants are accepted. Other attorneys can audit the training sessions, lectures, and workshops, with prior approval from the FPD.If you would like to apply, please send a letter of interest, resume, and three references to Laura Shaneyfelt, CJA Resource Counsel, at laura_shaneyfelt@fd.orgby December 1, 2018
And if you know an attorney who may be interested in or could benefit from the program, please pass along the information.

Surprise! Cutting funding for halfway houses means less people get to go to halfway houses.

Thu, 10/25/2018 - 20:47
You may have read some stories from last year that said the Bureau of Prisons (BOP) was cutting funding for halfway house programs. Big surprise that less people are going to halfway houses as a result. But maybe that is a good thing you, an astute person say. After all, the research that shows that halfway houses are effective is mixed at best. And because home confinement saves more money and allows people a chance to transition back directly into their community more people will end up there instead of halfway houses.

Well you would be wrong
Home confinement is in free fall, down 61 percent to a population of 1,822. The majority of that cut has come in just the past year. Now only 1 in 20 people under federal supervision is in transitional housing. While the overall prison population has also fallen in recent years, the number of federal prisoners monitored in communities has dropped more sharply.It is important for stakeholders in the criminal justice system to know that the old advice we gave our clients - that they can expect six months of halfway house at the end of their prison sentence - is not true anymore. And we should also consider letting our judges know that so they are aware that their sentences are functionally six months longer than they were just a year or two ago.

20 seconds of off-mission questioning is 20 seconds too long

Tue, 10/23/2018 - 17:58
Police questions during a traffic stop may violate the Fourth Amendment if they (1) are not necessary to complete the mission of the stop; (2) are not justified by a reasonable suspicion of other criminal activity; and (3) extend the duration of the stop for any length of time.
And thus, in United States v. Clark, the Third Circuit affirmed a suppression order holding that questions to a driver about his criminal history were irrelevant to the mission of the stop, were not otherwise justified by suspicious behavior, and improperly extended the stop by 20 seconds.

Fighting the BOP's unlawful take on "compassionate release"

Sun, 10/21/2018 - 20:20
Congress, via the Sentencing Reform Act of 1984, authorized the practice of “compassionate release”—that is, it authorized the BOP to request that a federal judge reduce a prisoner’s sentence for “extraordinary and compelling” circumstances, which may include either medical or nonmedical conditions that could not reasonably have been foreseen at the time of sentencing. In doing so, Congress recognized the importance of ensuring that justice be balanced with mercy. 

According to a recent reportissued by The Marshall Project and The New York Times, however, between 2013 to 2017 the 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 knowledge of these grim statistics, defenders nationwide are continuing to challenge the BOP’s unlawful implementation of the compassionate release statute (18 U.S.C. § 3582(c)(1)(A)(i)). District courts have jurisdiction and authority to require the BOP to comply with the statutory scheme by filing sentence-reduction motions for qualified candidates so that sentencing courts—not the BOP—may decide whether, when, and to what extent a prisoner’s sentence should be reduced, as Congress has intended. 

Current litigation pending in the Fourth Circuit—an appeal to the denial of habeas relief under § 2241 to a terminally ill prisoner who the BOP concedes meets its program-statement definition of “terminal medical condition”—provides the most recent example of excellent advocacy in this arena. 

In light of the exceedingly low BOP approval numbers for compassionate-release requests, work is yet to be done and a concerted effort on our part is needed for those prisoners who are—or will become—disabled, terminally ill, or who otherwise qualify for a second look at their case for a sentence reduction under U.S.S.G. § 1B1.13. Briefing for the pending Fourth-Circuit litigation, including an amici brief filed by FAMM and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, can be found hereand here.

"A dangerously racist view that has no place in the law"

Tue, 10/16/2018 - 19:04
"There is no reason to suspect that persons of a particular race are more likely to agree to commit a stash house robbery unless one believes that persons of that race are inherently more prone to committing violent crime for profit—a dangerously racist view that has no place in the law."

So wrote Ninth Circuit Judge Nguyen earlier this week, concurring in a ruling (also authored by Judge Nguyen) holding that the nearly impossible Armstrong standard for obtaining discovery on a claim of selective prosecution does not apply to a claim of selective enforcement, at least not in stash-house reverse-sting cases, and not in this case, where the agent in charge testified that out of the 60 stash-house stings he had conducted that resulted in indictments, more than 55 of the defendants were people of color.

The case is United States v. Sellers, and it is a must-read both on the question of what it takes to make a selective-enforcement discovery request and the problems with stash-house stings.

Bail Reform Act provides sole avenue for detention pending trial

Sun, 09/30/2018 - 19:49

Very recently, Judge Lamberth from the District of Columbia (and former Chief Judge) confronted head-on a critical quagmire in the separation-of-powers arena. 
In United States v. Vasquez-Benitez, 18-cr-00275, Docket Entries 26, 29 (D.D.C. Sept. 27, 2018), the District Court for the District of Columbia found this past month that the Bail Reform Act (i.e., the Judiciary) exclusively controls the custody of an individual facing criminal charges regardless of the Executive Branch’s authority to detain that individual under the Immigration and Nationality Act.  
A month into civil removal proceedings brought against Vasquez-Benitez, the government filed a criminal complaint charging him with illegal reentry. Shortly thereafter, customs officials transferred custody of Vasquez-Benitez to the U.S. Marshals Service for a detention hearing at which the court ordered his release pending trial under the Bail Reform Act's presumption for release. When the district court denied the government’s request to revoke release, the U.S. Marshals transferred the defendant back to customs officials for his continued detention related to the civil removal proceedings. 
But not so fast.This past Friday, after reopening Vasquez-Benitez’s detention hearing in light of his civil detention, Judge Lamberth not only granted Vasquez-Benitez's request that the district court's order for his supervised release pending trial be enforced but also clarified that Vasquez-Benitez may not be returned to the custody of Immigration & Customs Enforcement during the course of the criminal proceedings. Rather, “because the government has chosen to bring criminal charges against the defendant, a judicial order under the Bail Reform Act provides the sole avenue for detaining defendant while the charges are pending.” (D.E. 26, Emphasis added.)