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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger638125
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Tenth Circuit Breviaries

Sun, 12/01/2019 - 13:52
The Tenth Circuit did not publish any decisions in any direct criminal appeals last week.

Habeas practitioners will want to read Davis v. Sharp, affirming the denial of 28 U.S.C. 2254 relief to an Oklahoma state capital defendant. Sharp discusses anticipatory procedural bars, procedural default, and defense counsel's obligations with respect to investigating and presenting mental-health claims at trial.

Do border searches of electronic devices require reasonable suspicion?

Tue, 11/26/2019 - 09:58
The "border search" exception to the Fourth Amendment's warrant requirement allows "routine searches" at an international border without a warrant or any suspicion. A couple of weeks ago, we told you about United States v. Williams, in which the Tenth Circuit declined to decide whether reasonable suspicion is required to conduct a forensic search of a person's laptop seized at an international border. The Court held that Mr. Williams would lose either way, because there actually was reasonable suspicion to search his computer.

Other courts have held that suspicion is required to support a search of a phone or laptop at the border. Recently, in Alsaad v. McAleenan, a Massachusetts district court held that suspicionless searches of personal electronic devices seized at the border violate the Fourth Amendment.  The court emphasized that the border search exception is based the need to discover contraband in violation of customs and importing rules at the border, not to search for general evidence of crime. The court held that both a basic search of an electronic device and a more advanced (or "forensic") search are "non-routine" searches at the border, and thus require reasonable suspicion. But the court rejected the plaintiffs' argument that the higher probable-cause standard must be met.

Note: because Alsaad is a civil case, it does not deal with the good-faith exception that can be an additional obstacle in a criminal case in this developing area.

Tenth Circuit Breviaries

Sun, 11/24/2019 - 16:39
Last week at the Tenth Circuit:

Preserving sufficiency issues, both at trial and on appeal

In United States v. Leffler, the Tenth Circuit reminded us that it will consider a sufficiency argument forfeited (and subject to plain-error review on appeal) if it is different from the sufficiency argument made during a Rule 29 motion at trial. And it will consider the argument waived (and not reviewable at all) if appellate counsel does not argue it under the plain-error standard.

Let us consider ourselves warned.

Fourth Amendment/Fifth Amendment: consent

In United States v. Armando Martinez (unpublished), the Tenth Circuit reversed a district court order suppressing evidence, finding that an encounter between Mr. Armando Martinez and a Border Patrol agent was consensual. That encounter included some version of the following questions, asked in a conversational tone while the agent was standing about three feet away:

Good morning, I'm a Border Patrol agent.
Are you a United States citizen?
Are the people in your car your family?
Can I talk to them?

These questions, under the totality of other circumstances discussed by the Court, did not render the encounter a seizure.

Second Chair applications due December 1

Tue, 11/19/2019 - 13:06
Applications for the 2020 Kansas Federal Public Defender's Second Chair program are due December 1, 2019. The year-long program will take place in Wichita beginning in January. Inquiries should be sent to Laura Shaneyfelt at laura_shaneyfelt@fd.org.

Second Chair is a training and mentoring program for attorneys who want to apply for the CJA panel but lack the requisite experience. The program, led by the FPD, includes guideline workshops and an intensive six-part orientation that covers all phases of a federal criminal case. Each participant will be assigned to a more experienced mentor attorney to shadow on select cases.

Participants should plan to commit from 80 to 120 hours throughout the year. Compensation at the rate of $70 per hour is provided courtesy of the Bench-Bar Committee.

Tenth Circuit Breviaries

Sun, 11/17/2019 - 10:51
Last week at the Tenth Circuit:

Fourth Amendment

Must border searches of personal electronic devices be supported by reasonable suspicion? Maybe. Maybe not. Either way, there was reasonable suspicion for such a search in United States v. Williams

(Non)admissibility of exculpatory suicide note
In United States v. Hammers, the district court excluded a coconspirator's suicide note, in which the author took full responsibility for the charged fraud. The Tenth Circuit affirmed.
First, the statements in the note were not admissible as statements against interest under Fed. R. Evid. 804(b)(e), because (1) the author "had no intention of sticking around to face criminal prosecution"; and (2) the statements were not sufficiently corroborated.
Second, the statements were not admissible under the residual hearsay exception in Fed. R. Evid. 807, because the note did not offer sufficient guarantees of trustworthiness.
Third, the statements were not admissible under the defendant's Fifth and Sixth Amendment rights to present a defense because the district court did not abuse its discretion in excluding the note.
Sufficiency of evidence
In Hammers, the Tenth Circuit also rejected the defendant's argument that the evidence was insufficient to support his convictions. Here the Court reminds appellate practitioners that it will resist arguments asking the Court "to weigh conflicting testimony or evaluate the credibility of the witnesses."
Prosecutorial misconduct
The Hammers Court also rejected the defendant's claims of prosecutorial misconduct, holding that even if the government made improper statements, those statements did not prejudice the defendant.
Obstruction of justice, USSG 3C1.1
In Hammers, the Tenth Circuit reviews the elements of the obstruction-of-justice enhancement, and finds them met in this case. Read Hammers for a reminder of these elements.

Disruption of governmental function, USSG 5K2.7

Finally in Hammers, the Tenth Circuit held that a defendant convicted of embezzling federal program funds may be subject to an upward departure for disrupting a governmental function over double-counting objections (and the departure was factually supported here).

Can factual errors constitute plain error on appeal?

Wed, 11/13/2019 - 16:00

As we noted last week, the Tenth Circuit recently reminded us in United States v. Carter that it will not “typically” review a factual error at sentencing if that error was not raised first in the district court. The Court explained the reason for this rule: “when a defendant properly raises the disputed factual issues in the district court, a record sufficient to permit adequate review is thereby developed, but, when a defendant fails to raise the issue below, we have no factual record by which to review the district court’s factual determinations.”

Let's take a longer look at this precedent. In 2015, Justice Sotomayor, joined by Justice Breyer, addressed this issue in a statement respecting the denial of certiorari in United States v. Carlton. Carlton involved a factual error underlying a sentencing enhancement. The enhancement was based on witness testimony that simply did not contain the facts supporting the enhancement. No one discovered the error until appeal. The Fifth Circuit affirmed the sentence based on circuit precedent holding that “factual errors are never cognizable on plain-error review.”

Justice Sotomayor argued that this precedent is “misguided.” She wrote that neither the Supreme Court’s plain-error precedent nor Rule 52 distinguish between legal and factual errors. To the contrary, the Supreme Court has generally held that a per se approach to plain-error review is “flawed.” Justice Sotomayor also stated that no other circuit, beyond the Fifth Circuit, has a per se rule that factual errors cannot be plain error. She identified the Tenth Circuit as applying a rule somewhat like the Fifth’s. But, she noted, citing United States v. Dunbar, 718 F. 3d 1268, 1280 (10th Cir. 2013), “even the Tenth Circuit’s rule is subject to an exception in cases. . . where the appellant can establish the certainty of a favorable finding on remand.” She urged the Fifth Circuit to “rethink its approach to plain-error review.”

Take a look at these cases if you find yourself in a factual bind on appeal.

Tenth Circuit Breviaries

Mon, 11/11/2019 - 12:17
Last week at the Tenth Circuit:

Sentencing facts

"[P]olice reports are not inherently reliable." So the Tenth Circuit reminded us last week in United States v. Padilla, an unpublished decision vacating the defendant's sentence and remanding for resentencing on the record as it now stands. The problem? The district court relied on a police report not in evidence, over Mr. Padilla's reliability objections, to establish relevant conduct. But district courts cannot presume a police report reliable for sentencing purposes. They must find "that the specific document at issue contains sufficient indicia of reliability to support the probable accuracy of the information sought to be established." Read Padilla for a survey of cases discussing the use of police reports at sentencing.

Sentencing objections

Also read the 2 1/2 page footnote starting at page 4 of Padilla for a discussion of what is required (and what's not required) to preserve objections to factual findings at sentencing. And then, just to be safe, continue to object as often and on as many grounds as possible.

Removal proceedings/unlawful reentry

In Lopez-Munoz v. Barr, the Tenth Circuit held that alleged regulatory and statutory defects in a notice to appear for removal proceedings (which omitted the time and place for the hearing) did not deprive the immigration court of jurisdiction over Ms. Lopez-Munoz's removal proceedings (the question left open in Pereira v. Sessions, 138 S.Ct. 2105 (2018)).

Second or successive 2255 based on Davis

The Tenth Circuit authorized a second or successive 2255 petition based on Davis in in re Mullins, a decision all 2255 practitioners should read.

Probation officer's sentencing recommendation cannot always be confidential (in the DC Circuit)

Wed, 11/06/2019 - 12:57
Many judges have a policy of not disclosing the probation officer's sentencing recommendation to anyone other than the judge. But the DC Circuit has held that such a policy is impermissible. In that case, the defendant filed an unopposed motion for disclosure of the recommendation. The district court denied the motion, based on its policy of always treating the recommendation as "confidential." Federal Rule of Criminal Procedure 32(e)(3) allows a district court to “direct the probation officer not to disclose to anyone other than the court the officer’s recommendation on the sentence.” But, the DC Circuit held, this rule requires a court to "exercise discretion in deciding whether to withhold the recommendation. . . based on case-specific reasoning rather than on a uniform policy." The court vacated and remanded for resentencing.

Tenth Circuit Breviaries

Sun, 11/03/2019 - 15:26
Last week at the Tenth Circuit:


Two important tips when measuring restitution in a case involving child sex-trafficking, from the Tenth Circuit's decision last week in United States v. Anthony:

First, know that under both the Mandatory Victims Restitution Act and the Trafficking Victims Protection Reauthorization Act, the defendant's conduct must be the but-for cause of the victim's harm, and the defendant must have proximately caused the harm. This is true notwithstanding Paroline (which involved a different Act). Insist that the district court disambiguate overlapping harms and distinguish between any past harms caused by others and the present harms caused by your client.

Second, know the scope of your client's conspiracy: "restitution liability for a conspiracy with a non-fatal variance is measured by the scope of the smaller conspiracy proved at trial rather than the conspiracy charged in the indictment."

Habeas/Capital Punishment

Harris v. Sharp is a hefty 99-page decision in a capital habeas case out of Oklahoma state court. The result is a remand to the district court for an evidentiary hearing on Mr. Harris's claim that counsel was ineffective in failing to seek a pretrial hearing on his (in)eligibility for the death penalty (on grounds of intellectual disability). Along the way, the Tenth Circuit rejects Mr. Harris's claims respecting jury instructions, closing arguments, and victim testimony.

Issue Preservation

In United States v. Carter, the Tenth Circuit reminds us that it will not review a procedural sentencing error that the defendant affirmatively waived in the district court. What counts as a waiver? Unequivocally withdrawing an objection, in this case.

The Tenth Circuit also reminds us in Carter that it will not (typically) review a factual sentencing error if that error was either waived (affirmatively withdrawn/rejected) or simply forfeited (not raised).

Lesson learned? Make all factual and procedural sentencing objections in the district court, and reassert them with particularity at the end of the sentencing hearing. Otherwise, your client will be out of luck on appeal.

Pretrial release: so your client has a drug problem

Thu, 10/31/2019 - 17:23

It happens now and then that our clients struggle with addiction. But you can convert that problem into a reason for pretrial release. First, take your time, obtain an evaluation, and ask your expert to make treatment recommendations. Then access available treatment plans.
Second, pitch the effectiveness of drug treatment. Alternatives to detention “should be recommended” when a defendant “presents a specific risk of pretrial failure that can be addressed by an ATD. For example, a person with a substance abuse problem may be appropriate for drug testing, assessment, or treatment based on their specific situation.” Marie VanNostrand, Pretrial Risk Assessment in the Federal Court, 73 Federal Probation 3, 23 (Sept. 2009).
Drug treatment works. In a landmark publication, the Office of the Surgeon General recently issued a report canvassing addiction in America. U.S. Department of Health and Human Services, Office of the Surgeon General, Facing Addiction in America: The Surgeon General’s Report on Alcohol, Drugs, and Health (Nov. 2016). As the then-Surgeon General explained in his preface to the report, “[w]e . . . need a cultural shift in how we think about addiction. For far too long, too many in our country have viewed addiction as a moral failing. . . . We must help everyone see that addiction is not a character flaw – it is a chronic illness that we must approach with the same skill and compassion with which we approach heart disease, diabetes, and cancer.” Id. at v.
Even “serious substance use disorders can be treated effectively, with recurrence rates equivalent to those of other chronic illnesses such as diabetes, asthma, or hypertension. With comprehensive continuing care, recovery is an achievable outcome.” Id. at 7-5. With treatment, more than “25 million individuals with a previous substance use disorder are estimated to be in remission. Integrated treatment can dramatically improve patient health and quality of life, reduce fatalities, address health disparities, and reduce societal costs that result from unrecognized, unaddressed substance use disorders among patients in the general health care system.” Id.
A carefully prepared pretrial plan might make your client one of these success stories. Use your resources, take your time, and argue the science.
---Kirk Redmond

Pretrial release: the weight of the evidence

Wed, 10/30/2019 - 17:19

How exactly does the weight of the evidence of guilt influence a pretrial release decision? An interesting opinion from the District of Utah recently explored that question.
In United States v. Lizardi-Maldanado, 275 F.Supp.3d 1284, 1292 (D. Utah 2017), Judge Furst concluded that the weight of the evidence is relevant only to the extent that it demonstrates your client will be a danger to the community or a serious risk of flight. She explained that to “avoid falling down the rabbit-hole into the world of ‘[s]entence first—verdict afterwards’  the Court should consider the strength of the evidence only in terms of how that evidence bears on the risk of nonappearance and the risk of harm to the community.” Id. at 1272. And Judge Furst isn’t alone in this view. See, e.g., United States v. Hunt, 240 F.Supp.3d 128, 134 (D. D.C. 2017); United States v. Stone, 608 F.3d 939, 948 (6th Cir. 2010). To obtain detention, the government can’t just assert that the evidence of guilt is strong; it has to link that assertion to the ultimate questions of danger and flight.
---Kirk Redmond

Pretrial release: dealing with the presumption

Tue, 10/29/2019 - 17:19

Thanks to everyone who attended the Kansas FPD’s pretrial release conference in Lawrence last week (and congratulations again, Laura Shaneyfelt). We’re marking the occasion with some posts highlighting issues in pretrial release litigation, and will start by discussing the presumption.
As you know, 18 U.S.C. § 3142(e) creates a presumption of detention in certain cases. When the presumption of detention applies, “the burden of production shifts to the defendant. However, the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government.” United States v. Stricklin, 932 F.2d 1353, 1354-55 (10th Cir. 1991). When the “defendant's burden of production is met, the presumption remains a factor for consideration by the district court in determining whether to release or detain.” Id. This raises two questions:
Can detention be based solely on the presumption?
One of the first Kansas district courts to take a deep dive into the Bail Reform Act responded with an emphatic no. In United States v. Cox, 635 F.Supp. 1047 (D. Kan. 1986), the court found that heavy reliance on the presumption would render the Bail Reform Act unconstitutional. While “the Act’s provisions allowing for pretrial detention are constitutional, that constitutionality is impinged when the government seeks to justify detention solely by virtue of the presumption.” Id. at 1051. Consequently, “the presumption, even unrebutted, is insufficient standing alone to meet the burden of clear and convincing evidence.” Id. at 1052.
How much evidentiary weight should the rebutted presumption carry?
We say none; the research says we’re right. The “presumption does a poor job of assessing risk, especially compared to the results produced by actuarial risk assessment instruments such as the PTRA.” Amaryllis Austin, The Presumption for Detention Statute’s Relationship to Release Rates, 81 Federal Probation 52, 61 (Sep. 2017). The presumption fails to “correctly identify defendants who are most likely to be rearrested for any offense, rearrested for a violent offense, fail to appear, or be revoked for technical violations.” Id. at 60. So when you’ve rebutted the presumption, argue the empirical evidence. Even in cases where the presumption initially applied, that fact tells the court nothing about whether your client is a danger to the community or poses a serious risk of flight.
---Kirk Redmond