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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger649125
Updated: 2 hours 57 min ago

The CARES Act & federal criminal defendants

Sun, 03/29/2020 - 17:02

What’s in the CARES Act for people facing federal criminal charges?
Section 15002 of the Act includes emergency provisions that will allow our clients to waive their physical appearance and consent to appear by video teleconferencing or telephone conferencing for the following proceedings:
  • initial appearance
  • arraignment
  • detention hearing
  • preliminary hearing
  • waiver of indictment
  • Rule 40 appearance
  • misdemeanor plea and sentencing
  • probation/supervised release revocation proceedings (including pretrial release)
  • some juvenile proceedings
  • felony plea (“if the judge in a particular case finds for specific reasons that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of justice”)
  • felony sentencing (ditto the above findings requirement)
  • juvenile plea, sentencing, or disposition (ditto the above findings requirement)

Is this effective immediately?
No, it will only come into effect upon (1) certain findings by the Judicial Conference of the United States, followed by (2) certain findings by your local district court. Check your local district court's website over the next few days.
Does my client have a say in this?
The Act states that “[v]ideo teleconferencing or telephone conferencing authorized [by the bill] may only take place with the consent of the defendant, or the juvenile, after consultation with counsel.”
How long does this thing last?
Either 30 days after the date on which the national emergency declared by the President terminates, or until the Judicial Conference says so.
In the meantime, the Act provides for the local district court to review and determine whether to extend the authorization every 90 days.

Acquiescence to authority is not consent

Thu, 03/26/2020 - 13:07
In United States v. Pedicini, the Sixth Circuit recently emphasized the distinction between acquiescence to authority and consent to search. A highway patrol trooper pulled over Pedicini for driving in the bike lane. After asking Pedicini to get out of the car, the trooper asked if had any weapons and if he could pat him down. Pedicini did not verbally respond, but extended his arms and asked why he was being patted down and if he was in trouble. The trooper explained that he wanted to search for weapons, asked if Pedicini would mind a patdown, asked if he had any sharp objects, then listed several possible sharp objects. Pedicini then nodded his head and the trooper patted him down and found a gun. But, the Sixth Circuit said, it was unclear what Pedicini was nodding to. "What is clear from this exchange is Pedicini’s consistent confusion and reluctance to be searched as indicated by his repeated questions even while acquiescing to the Trooper." The court noted that non-verbal actions can constitute consent, but not if they are merely "acquiescence to a claim of lawful authority." The court found Pedicini's actions did not constitute voluntary consent, and reversed the district court's contrary findings.

Tenth Circuit Breviaries

Sun, 03/22/2020 - 18:58
We're finally catching up on Tenth Circuit criminal cases decided in the last few weeks:

Fourth Amendment/Fifth Amendment due process

In United States v. Wagner, the Tenth Circuit held that information that an internet user had accessed child pornography six months ago was not too stale to support a search warrant for the residence associated with the user's IP address. The Court also rejected Mr. Wagner's particularity challenge to the warrant.

The Wagner Court also held that even if a magistrate's earlier NIT warrant for Playpen's servers was invalid (for various reasons), FBI agents executed the warrant in good faith (reaffirming Workman). And the agents' operation of the Playpen child-pornography website did not rise to the level of outrageous governmental conduct necessary to support dismissal of the indictment.

Fifth Amendment right against self-incrimination

More from Wagner: the FBI's interview of Mr. Wagner during execution of the search warrant at his house was noncustodial, and his statements to the agents were voluntary. So concluded the Tenth Circuit.

Exclusion of hearsay/motion for new trial

Trial practitioners take note: In Wagner, trial counsel (1) unsuccessfully sought to cross-examine a government witness about out-of-court statements that had previously been admitted (the district court sustained the government's hearsay objection); and then counsel (2) unsuccessfully moved for a new trial after Mr. Wagner's conviction, arguing in part that the district court's restriction of his cross-examination violated his due-process rights. This was preserved trial error. And it was argued as trial error on appeal. And yet the Tenth Circuit analyzed it as an appeal from the district court's denial of the motion for new trial--triggering a tougher appellate standard, which the Tenth Circuit held Mr. Wagner did not meet. Would he have been in better appellate shape had he not moved for a new trial?

Discuss amongst yourselves.

Sufficiency of evidence of child pornography

Finally in Wagner, the Tenth Circuit held that the evidence was sufficient to prove that Mr. Wagner knowingly received and possessed child pornography.

Sufficiency of evidence of obstruction of justice/attempt to kill witness

In United States v. Chatman, the Tenth Circuit reversed Mr. Chatman's conviction for attempting to kill a witness as well an accompanying 18 U.S.C. 924(c) conviction. Given the unique facts suggesting frustration, retaliation, or attempted "suicide-by-cop," the government failed to prove that Mr. Chatman's exchange of gunfire with a police officer was intended to prevent the officer from communicating the possible commission of a federal offense (Mr. Chatman's unlawful gun possession) to a federal officer or judge.

8 U.S.C. 1326: unlawful reentry

In United States v. Lira-Ramirez, the Tenth Circuit considered newly unearthed statutory history, but ultimately stood by its earlier decisions holding that notices to appear for removal proceedings are not jurisdictional; consequently, an unlawful reentry conviction may be predicated on an earlier removal that followed from a defective notice to appear.

Pleas and magistrate judges

Do magistrate judges have authority to accept guilty pleas and adjudicate the defendant guilty of a felony if the parties consent? Yes (and even if they didn't, that limit would not implicate jurisdiction), according to the Tenth Circuit in United States v. Finnesy.

Day 3: FPD COVID-19 Statement

Tue, 03/17/2020 - 21:21
In response to increasing COVID-19 concerns, the Federal Public Defender believes that our highest obligation to our clients is to slow the spread of the pandemic. We have taken precautionary measures that we describe below. And we are appreciative to the federal district court for suspending all non-emergency hearings, including jury trials and grand jury proceedings, and allowing for some appearances by video.

Our primary concern now: the spread of COVID-19 in the jails. We need to stop the flow of people into the jails, and where possible reduce the population. This is beyond dispute: keeping people in jail presents a grave danger to public health, both for those in custody and for jail personnel, who return to the public and to their own families every day. Jails are incubators for COVID-19. Once it takes hold inside the walls, the virus will quickly travel back into the community.
The Bail Reform Act authorizes judicial officers to order temporary release for a “compelling reason.” 18 U.S.C. §3142(i). Nothing could be more compelling than this public health crisis. We expect the landscape on this front—within the pretrial holding facilities—to change rapidly. Soon we will ask the court to consider release of medically vulnerable or compromised clients or to expedite the release of those who were slated for release in the next few months.
Thank you to the United States Marshal Service for sharing information about jail COVID-19 policies. BOP advises “admission of new inmates will continue,” so the health of the detainees will directly affect the health of the BOP population. We ask the Marshal to take these steps:
§  require all facilities who contract with the USMS to daily publish (effective today, March 17, 2020) the number of people—both detainees and personnel—who have:
                        screened or tested positive for COVID-19 symptoms;                                    tested positive for COVID-19;                                    been isolated or quarantined within the facility; or                                    been hospitalized outside the facility.
§  refrain from serving outstanding arrest warrants unless there is an imminent risk of violence;
§  refuse to house any person in USMS custody in a facility that has not implemented adequate precautionary measures to slow the spread of the contagion, identify those at risk of infection, and properly treat those at risk:
       this should include, at a minimum, that the facility provide free soap, alcohol-                     based hand sanitizer, disinfectant, and masks;                               it should also include effective individual isolation within the facility, and anyone              who must be quarantined should be removed to a hospital.
§  require each facility to provide or allow installation of adequate video-conferencing capability for attorney-client visitation.            Likewise, we appreciate the U.S. Attorney’s caution in going forward. Besides the measures already taken, we ask the USAO to:
§  suspend or discourage arrests for offenses that do not involve an imminent risk of violence;
§  where immediate action is necessary, proceed by summons rather than by arrest; each arrest increases exponentially the number of people subject to exposure, including law enforcement;
§  where pretrial detention is at issue, rethink the criteria for recommending detention or house arrest, and consider recommending fewer conditions to protect probation officers from unnecessary risk;
§  consider temporary release or house arrest for those currently in custody who are at high risk because of compromised immune systems, age, or other medical vulnerability; and
§  do not obtain or review any recorded detainee communication, including email, phone, and videoconferencing.
The FPD continues to closely monitor our clients’ circumstances. We have gone to full-time mandatory remote work; closed our physical offices, with one duty attorney at each courthouse; and suspended in-person jail visitation (except for emergencies). We are working on new ways to safely communicate with our clients who remain in custody.
The measures already implemented and those requested above are critical to public health. It is no longer a question of just protecting ourselves, but protecting others who are at risk, including our indigent clients in custody, courthouse staff (including janitorial services), courthouse security, jail and law enforcement personnel, attorneys, and the court.

FPD and COVID-19

Sun, 03/15/2020 - 20:56
In response to COVID-19, the FPD is temporarily changing how we work. Please be assured that we are still working—as long as our clients are in jail or under prosecution, we will work. Our immediate responsibility—everyone’s immediate responsibility—is to slow the spread of the contagion, to flatten the curve. 
So for the next few weeks, we will work remotely. Our physical offices are closed. Most court hearings are delayed. Phone messages and email will be monitored, but may not be answered immediately. We will continue to communicate with our clients and tend to business, even if business is delayed. We will closely review and monitor the well being of our clients in custody, those who are most vulnerable and with the least control over their own lives. We are ready to fight for their release to protect their health.  ​Our contact information is available on ks.fd.org. Please call or email as needed. And everyone, please take care of yourselves and each other.

COVID-19 Captives

Wed, 03/11/2020 - 21:27

As the number of people diagnosed with the coronavirus starts to creep up in states around the country, fears are rightfully sparking about the impact of this outbreak on a critically vulnerable group of people: those incarcerated in our jails and prisons. The danger of infection is high in these crowded, unsanitary facilities—and the risk for people inside and outside of them is exacerbated by the “churn” of people being admitted and released at high rates.
Slate, The Coronavirus Could Spark a Humanitarian Disaster in Jails and Prisons.
        Many detention facilities, including CoreCivic, have refused to say how − or whether − they intend to protect our clients from COVID-19. From inside, we hear that they have provided little to no meaningful guidance or directives, and few protective resources (like hand sanitizer). These facilities owe the people in their custody, their families, and their visitors candid answers about how they are managing COVID-19 concerns.      David Patton, the federal defender in Southern/ Eastern District of New York, issued this statement:The Federal Defenders of New York calls on the BOP and each institution in New York City housing federal detainees to make public its plans and policies for preventing a coronavirus outbreak and responding to detained people who contract coronavirus. At a minimum, those plans and policies should include:1. A comprehensive testing protocol;2. Much greater precautionary measures with respect to sanitation and hygiene, including frequent cleaning and ready availability of soap and tissues (the opposite of what is occurring at the MCC right now);
3. A provision for quarantining anyone who tests positive for the coronavirus at a hospital, not at the jail;4. A provision that the jails not be locked down or closed off to outsiders or considered in their entirety as places of “quarantine”, and permitting lawyers and family members access to their clients and loved ones;5. Coordination with the Courts and U.S. Attorneys’ Offices to ensure that only in extraordinary circumstances should any new arrestee be detained at the jails, and no one should be admitted without testing.Likewise, fifteen Democratic senators have demanded action from BOP and private facilities, including CoreCivic, by March 16, 2020:
Given the spread of the virus in the U.S.—and the particular vulnerability of the prison population and correctional staff—it is critical that [you] have a plan to help prevent the spread of the novel coronavirus to incarcerated individuals and correctional staff, along with their families and loved ones, and provide treatment to incarcerated individuals and staff who become infected.
            The Kansas Federal Public Defender joins these demands, and specifically calls on CoreCivic and other pretrial facilities to publish their COVID-19 plans and policies. This is not meant to be alarmist or opportunistic. And, here, we are not even talking about the constitutional implications of this crisis on those in custody.  These requests—for medical care and prescribed precautions, for information and transparency−are a matter of public health, institutional responsibility, and human decency. Until these questions are answered, perhaps we should rethink who we force into these unsafe conditions. Again from Slate:
A hallmark of incarceration is that it strips people of autonomy and self-determination; a medical outbreak of this proportion shines a harsh light on the real-life effects of that deprivation. . . . We must take responsibility for the crisis of mass incarceration we have created, which is now also a massive public health crisis waiting to happen. Prosecutors can stop seeking detention in many cases; judges can stop incarcerating people at the outset; and courts, politicians, and parole commissions can begin to release people who are already incarcerated.
. -- Melody

Times they are a-changin': e-Discovery

Sun, 03/08/2020 - 18:47

The times they are a-changing
, no matter how much some people (you know who you are) want to cling to 2-hole punches, hide in bankers boxes, and nurse paper cuts. We receive and manage discovery electronically now. Here are three ways to cope with these a-changin' times.
First: A new mandatory rule of federal rule is in effect, Rule 16.1:
(a) Discovery Conference. No later than 14 days after the arraignment, the attorney for the government and the defendant's attorney must confer and try to agree on a timetable and procedures for pretrial disclosure under Rule 16.

(b) Request for Court Action. After the discovery conference, one or both parties may ask the court to determine or modify the time, place, manner, or other aspects of disclosure to facilitate preparation for trial.
The District of Kansas Pretrial Criminal Case Management Order (with specific ESI directives) is filed in every criminal case. The order encourages the parties to meet and confer before the status conference, which is generally set about 45 days after arraignment. The new Rule, however, requires us to meet and confer within 14 days. The Kansas FPD has developed a checklist to comply with Rule 16.1 and the district’s general order.

“Then you better start swimmin’Or you’ll sink like a stoneFor the times they are a-changin’”

Second: Once you get discovery, what do you do with it? It is encrypted, in an unrecognizable format, and needs its own hard drive. How do you even open it? We have answers. The FPD Spring CLE will focus on managing and reviewing e-Discovery. Two years ago, we had a hands-on training with National Litigation Support Team, and they are back for an encore performance in Wichita on April 16 and in Lawrence on April 17, 2020.  To register, contact dana_burton@fd.org.
“Please heed the callDon’t stand in the doorwayDon’t block up the hallFor he that gets hurtWill be he who has stalled.”
Third: Now you have the discovery promised at the Rule 16.1 conference. You know how to read it because you attended the e-Discovery CLE. And you realize that it is a discovery dump that does not include the critical information that should be there. Time to litigate. One of the best sources is the Department of Justice’s own manual. It gives prosecutors detailed direction, including “Where to look: The Prosecution Team” (“Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.”); “What to Review” (the investigative agency’s files, snitch files, Giglio, and so forth); and Making Disclosures; and guidance on disclosure of electronic communications. This is a wealth of good information.

“Come writers and criticsWho prophesies with your penAnd keep your eyes wideThe chance won’t come again . . . . . For the times they are a-changin’”

-- Melody

Follow the Kansas FPD on Twitter: @FedDefenderKS

Selective prosecution in Hobbs Act robbery cases

Thu, 03/05/2020 - 09:52

In news of creative defense litigation, in United States v. Coley, the Ohio Federal Public Defender has been litigating a motion to dismiss an indictment on the basis of race-based selective prosecution. The claim is that federal prosecutors are indicting only black defendants on Hobbs Act robbery charges in federal court, while leaving similarly situated white robbery defendants in state court. United States v. Armstrong sets forth the (very high) standards for a selective-prosecution claim.

To pursue the claim, the FPD notes that 25 cases of Hobbs Act robbery have been brought in the division between 2013 and 2017: 24 defendants were black, 1 was Hispanic, and none were white. The FPD subpoenaed state court presentence reports of robbery defendants, in order to show that white defendants with similar histories to the federal defendants were not prosecuted in federal court. The state judges objected to producing the documents, arguing that they were irrelevant and confidential. The United States pushed for the setting of a trial date.  

In January, the district court issued two orders that are worth a look. First, the court overruled the state judges' motion to quash the subpoenas for the PSRs. United States v. Coley, 2020 WL 373984 (N.D. Ohio Jan. 16, 2020). The court found that Coley's need for the documents outweighed any objections to producing them. Shortly thereafter, the court denied the United States' motion to set a trial date. The court noted: "The outcome of this case is important to the public - and its importance goes far beyond wanting a speedy trial and timely verdict. It is more important that the public have confidence that the government and those who work with and for it are race-blind. In the end, this case is about whether, in this instance, that confidence is merited."

Tenth Circuit Breviaries

Sun, 03/01/2020 - 16:36
From the last two weeks at the Tenth Circuit:

911 calls & present sense impressions

In United States v. Lovato, the Tenth Circuit found no error in the district court's admission of a 911 call at the defendant's trial as a present sense impression under Fed. R. Evid. 803(1). Read Lovato for a detailed application of this rule.

Cooperators & public access to court records

The District of Utah has a local rule requiring that all plea agreements include a sealed supplement stating whether or not the defendant cooperated with authorities. The purpose of the rule is to protect cooperators. The thinking is that if there's a sealed document in every case with a plea agreement, nobody can tell who cooperated and who didn't.

Two problems with this approach.

First, not everybody is going to get the memo. That is, absent knowledge of the local rule, not everybody who looks at a docket sheet is going to understand that this defendant's sealed supplement is not meaningful.

Second, the application of this rule across the board, without case-specific findings, violates the common-law right of public access to judicial records. This right applies to the details of a defendant's plea bargain. And it is "fundamental to the democratic state."

So held the Tenth Circuit in United States v. Bacon, reversing the district court's refusal to unseal a non-cooperating defendant's plea supplement.

Juveniles & life sentences

In Rainer v. Hansen, the Tenth Circuit held that a combination of release opportunities that would arise between the ages of 42 and 60 for a defendant sentenced to 112 years' imprisonment for nonhomicide crimes committed when he was 17 years old satisfied Graham v. Florida's requirement that juveniles given life sentences have some meaningful opportunity for release.

30 Days and a “Wake-Up”—The Compassionate Release Countdown

Sun, 02/23/2020 - 16:45
In December 2018, in the midst of the holiday season, Congress gave us the gift of the First Step Act (FSA). This long overdue criminal justice reform legislation, among other things, ended BOP’s exclusive reign over the compassionate release process. One of the reasons for this reform was the absolute lack of compassion shown toward our incarcerated brothers and sisters facing terminal illness. Inmates were literally dying in BOP custody while their requests for compassion went unanswered. Just over a year after compassionate release was revised, however, BOP’s stats are still pretty abysmal. According to BOP’s first report to Congress on compassionate release stats for 2019, wardens received 1735 requests. The BOP Director approved 55 and denied 171.

Presumably, the remaining requests never made it to the Director. In 2019, 41 people died in BOP custody awaiting compassionate release.
I know these numbers are infuriating, but be not discouraged! There is still hope. The revised version of compassionate release never actually expanded BOP’s capacity to grant these requests. What the FSA did do was empower our clients to go directly to their sentencing judges for the relief that BOP is either unwilling to grant or unmotivated to process in a timely manner. Remember that an inmate can file a motion for compassionate release 1) after exhausting BOP’s administrative remedy process; or 2) if BOP has not responded to a request after 30 days. There are no rules within the First Step Act that limit the time in which BOP must facilitate administrative appeals, so Option #2 is the ideal route for this kind of request.
Now go back and look at the numbers for 2019 again…does it look like BOP is likely to respond within 30 days given the volume of requests they receive? If I were a betting woman, I wouldn’t put my money on it. To the extent we can, clients and their advocates need to take advantage of BOP’s failure to meet the 30-day deadline. This is by far the easiest way to get to get your foot in the door. Keep track of the date the request is delivered to the Warden’s office. We use FedEx, but any service that requires signed receipt will do. Then mark your calendar for 30 days and stay in touch with your client to confirm whether he or she has received a response from the warden of that facility. If not, file the motion. GET YOUR FOOT IN THE DOOR!
Once your client has standing to go directly to the judge, the world is your oyster. My favorite part about going directly to the court is the sentencing judge is NOTbound by BOP’s narrow definition of “extraordinary and compelling” circumstances. The government may disagree, but who cares? The majority view is that the courts have discretion. And, as Professor Berman has noted, some of those courts have found extraordinary and compelling circumstances where the movant would not have been sentenced as harshly today.
In the last six months, two of our clients were released from custody. The first was diagnosed with pancreatic cancer and informed he had a life expectancy of 18 months or less. The 18-month mark is a BOP threshold. My client had been seeking compassionate release to no avail much earlier in his cancer diagnosis. He sought compassionate release on his own for months before the court appointed our office to represent him. This eliminated the 30-day option for us. Instead, we were forced to engage the administrative appeals process. It was extremely difficult to find out the status of his appeal with BOP, let alone get a response to it. Just when we decided we would petition the court on the basis that BOP violated the spirit of the FSA by taking months to respond to a dying man’s appeal, BOP informed me that my client’s request would be granted. Our local USAO filed the motion to reduce my client’s sentence to time served. He was home within 24 hours of the judge signing the order. He is receiving treatment at a nearby oncology center surrounded by people who love him.
The more recent success story was one in which we were able to file the motion for reduced sentence after BOP missed the 30-day deadline. My client did not fall within BOP’s compassionate release-worthy categories. While she was serving a five-year sentence for arson, her special-needs daughter was left in the care of a family member. After an allegation of abuse, the state removed the daughter from the home and placed her in foster care. Although the family member caregiver was not physically incapacitated (BOP’s standard), we argued that the caregiver was legally incapacitated. The government initially objected, but agreed after USPO approved the release plan. The court granted the motion.
I’m not discouraged by the numbers at all. In fact, I’m excited by the opportunity to hold BOP to the 30-day deadline. You don’t even need 31 full days to get your foot in the door. If you countdown like Soldiers in the Army, all you really need is 30 days and a wake-up.

*United States v. Fox, No. 2:14-CR-03-DBH, 2019 WL 3046086, at *3 (D. Me. July 11, 2019); United States v. Beck, No. 1:13-CR-186-6, 2019 WL 2716505, at *6 (M.D.N.C. June 28, 2019) (“While the old policy statement provides helpful guidance, it does not constrain the Court’s independent assessment of whether ‘extraordinary and compelling reasons’ warrant a sentence reduction under § 3582(c)(1)(A)(i). An interpretation of the old policy statement as binding on the new compassionate release procedure is likely inconsistent with the Commission’s statutory role.”); United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923, at *3 (S.D. Tex. June 17, 2019) (“Because the Commission’s statutory authority is limited to explaining the appropriate use of sentence-modification provisions under the current statute, 28 U.S.C. § 994(a)(2)(C), an amendment to the statute may cause some provisions of a policy statement to no longer fall under that authority ....”) (emphasis in original)); United States v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051, at *4 (S.D. Iowa Oct. 8, 2019) (“Therefore, if the FSA is to increase the use of compassionate release, the most natural reading of the amended § 3582(c) and § 994(t) is that the district court assumes the same discretion as the BOP Director when it considers a compassionate release motion properly before it.”); United States v. Adams, No. 6:94-CR-302, 2019 WL 3751745, at *3 (M.D.N.C. Aug. 8, 2019) (holding that the Director of the Bureau of Prisons’ prior “interpretation of ‘extraordinary and compelling’ reasons is informative,” but not dispositive.); United States v. Bucci, No. CR 04-10194-WGY, 2019 WL 5075964, at *1 (D. Mass. Sept. 16, 2019) (“This Court agrees with Judge Hornby of the District of Maine that interpreting the Sentencing Commission’s guidance on compassionate release today begins with the premise that ‘[t]he First Step Act did not change the statutory criteria for compassionate release, but it did change the procedures, so that the Bureau of Prisons is no longer an obstacle to a court’s consideration of whether compassionate release is appropriate.’”) (citation omitted).
---Laquisha Ross, AFPD

When the PSR has no clothes.

Wed, 02/19/2020 - 11:37
We know that a district court can accept facts stated in the PSR, unless the defendant objects to them. An objection triggers the government's obligation to prove the objected-to facts by a preponderance of the evidence. See United States v. Harrison, 743 F.3d 760, 763 (10th Cir. 2014). 

A recent Seventh Circuit decision reminds us about the practical importance of these objections. In United States v. Helding, the Seventh Circuit vacated the defendant's sentence for marijuana distribution because of the unreliability of the district court's drug-quantity finding. 140 kilograms of marijuana were seized from the defendant's car. The PSR also attributed 64 ounces of methamphetamine to him as relevant conduct, based on statements made to law enforcement by confidential informants. The meth raised the guidelines range from 180-210 months to 270-322 months. The defense objected, arguing that that the meth statements were not corroborated and the PSR did not establish that the informants were credible. The district court accepted the meth statements as reliable because the statements were specific and detailed. The Seventh Circuit held that the district court could not accept the out-of-court meth statements as reliable over an objection by the defendant, without some corroboration or information about the reliability of the informants. Where the PSR "asserts nothing but a naked or unsupported charge, the defendant’s denial of that information suffices to cast doubt on its accuracy." 

Remember: if the defense had not objected, the district court would have been free to accept the meth statements as established fact. 

In the news: Real tigers vs. paper tigers

Mon, 02/17/2020 - 08:49

1. Judge Jack Weinstein, district judge in Eastern District of New York  and Wichita native son, steps down from the bench. His decisions were marked by compassion, see United States v.Bannister, 786 F.Supp.2d 617 (EDNY 2010), when he toured the defendants' impoverished neighborhood; and a sense of justice, see NYT, The 96-Year-Old Brooklyn Judge Standing Up to the Supreme Court:

‘The Supreme Court’s recent emphasis on shielding public officials and federal and local law enforcement means many individuals who suffer a constitutional deprivation will have no redress,’ he wrote.
We will miss him, and wish him the best in retirement.2. “State-federal task forces are out of control.” Radley Balko writes for the Washington Post, reviewing the history and efficacy of joint-task forces, (“Nixon wanted ‘strike forces’ that could kick down doors and put the fear of God into drug offenders without burdensome hurdles like the Fourth Amendment or the separation of powers”). Today, they are ubiquitous and unaccountable. (“With little oversight, they have a record of overstepping and misdeeds, from excessive force to shootings, to mistaken raids, to straight up corruption. and the persistent lack of accountability.”)3. Four federal prosecutors stood up to the Department of Justice’s interference in a local prosecution, followed by a paper tigerfrom 1100 former prosecutors who implored,

[W]e call on every DOJ employee to follow their heroic example and be prepared to report future abuses to the Inspector General, the Office of Professional Responsibility, and Congress; to refuse to carry out directives that are inconsistent with their oaths of office; to withdraw from cases that involve such directives or other misconduct; and, if necessary, to resign and report publicly—in a manner consistent with professional ethics—to the American people the reasons for their resignation.
If only.
− Melody

February(ish) Fourth Amendment Extravaganza

Wed, 02/12/2020 - 12:40
Seizure: In United States v. Hood, a D.C. district court held that a defendant was seized when a uniformed and armed officer got out of his car, approached the defendant on foot, shined a flashlight at him, and told him to "hold on a sec." Because there was no reasonable suspicion justifying the detention, the firearm subsequently discovered in the defendant's waistband was suppressed.

Exigent Circumstances: In United States v. Rodriguez-Pacheco, the First Circuit held that the officers' warrantless entry into the defendant's home to investigate a domestic-violence allegation was unconstitutional. The court rejected the government's exigent circumstances justification, holding that  the fact that the the defendant was a police officer who kept his service weapon at home did not justify the entry. The court noted that the defendant was unarmed, had not threatened violence, had no history of violence, and the gun was not connected to the crime being investigated. The information found from a search of the cellphone, camera and laptop seized during the entry was suppressed.

Warrant Overbreadth: In United States v. Burkhow, an Iowa district court held that a warrant authorizing the search of the defendant's entire Facebook account was overbroad, and exceeded the probable cause on which the warrant was based. The court noted that the warrant did not contain temporal limitations, or any restrictions to a specific type of account activity or interactions with specific people. "Given that social media profiles often contain a wide array of personal data spanning years, some restriction here was necessary to prevent a general rummaging beyond limiting seizure to the offenses being investigated."

Right to Observe the Police: In Chestnut v. Burds, the Eighth Circuit affirmed the denial of qualified immunity to a police officer who stopped, frisked, and handcuffed a bystander watching another police officer perform traffic stops. The court found there were genuine disputes of fact, such as whether the bystander was suspiciously "lurking" in the darkness, or whether he purposefully remained visible to the officers. The court also held that if the bystander was, as he says, visible and not interfering, then the officer clearly violated his "clearly established right to watch police-citizen interactions at a distance and without interfering."

Tenth Circuit Breviaries

Sun, 02/09/2020 - 16:05
Last week at the Tenth Circuit:

Unlawful reentry

A person charged with unlawful reentry may collaterally challenge the prior removal order that rendered reentry unlawful under 8 U.S.C. § 1326(d). But not if that prior removal order was expedited. At least not according to 8 U.S.C. § 1225(b)(1)(D), which purports to deprive courts of jurisdiction to consider collateral attacks on expedited removal orders.

Section 1225(b)(1)(D) is unconstitutional. So declared the Tenth Circuit in United States v. Gonzalez-Fierro, explaining that "it deprives a defendant like Gonzalez-Fierro of due process; that is, § 1225(b)(1)(D) allows the Government to use an unreviewed expedited removal order to convict a defendant of the § 1326(a) offense of unlawfully  reentering the United States after a prior removal."

Unfortunately for Mr. Gonzalez-Fierro, his collateral challenge fails under the strict terms of § 1326(d).

Pre-sentencing plea withdrawal

Did the law change between your client's plea and sentencing, and if so, did that change render your client's plea not knowing and voluntary? Check out United States v. Zayas (unpublished), holding that the district court should have granted a pre-sentencing motion to withdraw a plea on grounds that the defendant was not aware of the mens rea requirement required to prove her guilt (nope, not a Rehaif case, but an Assimilated Crimes Act case based on a New Mexico statute that, after Ms. Zayas's plea, the New Mexico Supreme Court interpreted as having a higher mens rea than precedent had previously held).

In the custody, care, or supervisory control of the defendant, USSG § 2A3.2(b)(1)

In United States v. Blackbird, the Tenth Circuit found error in the district court's application of this 4-level sentencing enhancement to Mr. Blackbird, who pleaded guilty to attempted sexual abuse of his 15-year-old granddaughter. Merely showing that Mr. Blackbird was the victim's grandfather was not enough; neither was showing that he exploited an opportunity when she was home alone. There was no evidence that Mr. Blackbird was babysitting or otherwise responsible for his granddaughter. Sentence vacated.

News roundup: Fresh fingerprints, old gang databases, and a new defense.

Wed, 02/05/2020 - 10:30

Links to some recent articles:

El Chapo1. The Economist reports, “Fingerprints can now be dated to within a day of when they were made,” making a case of “Whendunnit?”
2. The Los Angeles Times reports on February 3, 2020, “ LAPD scandal opens window into California’s secret gang database as reforms debated.” The scandal involves some 20 LAPD police officers “falsifying information used to identify gang members” in the state’s database, CalGang, and the state's lagging reform effort. Kansas’s system suffers from a similar lack of transparency, accountability, and veracity.* 

3. And in the category of “why didn’t I think of that?,” next time you have a hopeless case set for trial, just move to exclude all witnesses and evidence. Apparently, that’s a thing. Andy Borowitz of the New Yorker describes, “El Chapo outraged his trial included witnesses.” (quasi-satire warning).


*If you are grappling with this issue, be sure to read, “Fear Itself: The impact of allegations of gang affiliation on pre-trial detention,” 23 St. Thomas L. Rev. 620 (2011).

Wait---I'm transporting WHAT?

Mon, 02/03/2020 - 17:30

Your client has been charged with a drug-trafficking conspiracy after being stopped carrying a backpack containing drugs. He knew that he was transporting drugs. But can he be convicted (and can his mandatory minimum sentence be enhanced) based on drug type and quantity absent proof that he knew these details? The Ninth Circuit has just asked the parties to brief these questions (under different facts) in United States v. Collazo, Ninth Circuit No. 15-50509, et seq. (order filed 1/29/2020). The case is in an interesting posture: After argument to a three-judge panel, the panel asked the parties to address whether the case should be heard initially en banc. The court ultimately voted to hear the matter en banc, and it was argued and submitted to the en banc court on January 13, 2020.Last week, the en banc court requested further briefing, specifically:1. How do United States v. Feola, 420 U.S. 671 (1975), and its progeny in this Circuit, see, e.g., United States v. Hubbard, 96 F.3d 1223, 1229 (9th Cir. 1996); United States v. Baker, 63 F.3d 1478, 1491 n.16 (9th Cir. 1995), apply to the government’s burden of proving that a defendant is guilty of conspiracy under 21 U.S.C. § 846 for agreeing to commit an offense under § 841(a), (b)? The parties should address whether the requisite intent for conspiracy under § 846 is the same as the requisite intent for distributing a controlled substance under § 841(a), (b). The parties should also address whether the government has to prove beyond a reasonable doubt that the scope of the defendant’s agreement for a § 846 and § 841(a), (b) offense includes a particular drug type and quantity. In connection with these issues, does the rule in Feola apply only to jurisdictional elements, or does it also apply to elements such as drug type and quantity?2. Whether this Court should adopt Judge W. Fletcher’s position in United States v. Jefferson, 791 F.3d 1013, 1019 (9th Cir. 2015) (W. Fletcher, J., concurring), as to both substantive drug offenses under § 841(a) and conspiracy offenses under § 846. See Jefferson, 791 F.3d at 1023 (“I do not believe the government can subject the defendant to escalating mandatory minimums . . . without proving that he knew which illegal drug he was importing.”).3. Whether this Court should adopt the approach reflected in United States v. Gentry, 941 F.3d 767, 785–86, 794 (5th Cir. 2019) (requiring that defendant “knew or reasonably should have known that the scope of the conspiracy involved at least 50 grams of a mixture containing a detectable amount of meth”).The Ninth Circuit's en banc interest in these questions makes it a good time to preserve this issue by requesting appropriate jury instructions and challenging sentencing enhancements absent drug type/quantity admissions (at a guilty plea) or a verdict (at trial) in your own cases. Watch this space for further developments.  

Tenth Circuit Breviaries

Sun, 02/02/2020 - 09:12
Last week at the Tenth Circuit:

Fed. R. Evid. 404(b)

Evidence that the victim of a stabbing was under the influence of methamphetamine at the time of the stabbing was relevant for a non-propensity purpose: to establish and explain the victim's erratic and violent behavior, in support of the defendant's self-defense defense. This evidence should not have been excluded on 404(b) grounds. And thus the Tenth Circuit reverses a first-degree murder conviction in United States v. Tony

Parsing the Plea Agreement

Think you've extracted a promise from the government in your client's plea agreement? Think again---especially if the language includes a condition to be determined "in the government's sole discretion." That's the lesson of United States v. Rubbo, which holds that the government did not breach a plea agreement by recommending a smaller percentage departure than "promised." Read Rubbo for a sense of how the Tenth Circuit reads plea agreements that are conditioned on acts of the defendant as interpreted by the government.

Take a look at the report of the Third Circuit Task Force on Eyewitness Identifications

Wed, 01/29/2020 - 14:00
The Third Circuit Task Force on Eyewitness Identification has issued a comprehensive report that is chock full of information and resources. The Task Force was comprised of a variety of stakeholders, including appellate judges, district court judges, law enforcement officers, professors and researchers, a prosecutor, and a public defender. The task force was charged with making recommendations “to promote reliable practices for eyewitness investigation and to effectively deter unnecessarily suggestive identification procedures, which raise the risk of wrongful conviction.” The report reviews science-based research to identify factors and practices that increase or reduce the likelihood of an erroneous identification. The report then makes best-practice recommendations for all types of identification procedures. The report also makes recommendations for changes to the Third Circuit pattern jury instructions about eyewitness identifications. Take a look at the whole report.

Tenth Circuit Breviaries

Sun, 01/26/2020 - 18:29
Last week at the Tenth Circuit was Fourth Amendment week:

Fourth Amendment

In United States v. Sadlowski, the Tenth Circuit held that (1) a New Mexico metropolitan court did not lack authority to issue a felony-related search warrant; (2) the search warrant was not "sufficiently federal" to require issuance in accordance with Fed. R. Crim. P.  41; (3) the affidavit in support of the search warrant, which relied in part on a confidential informant, provided probable cause for the warrant; and (4) Mr. Sadlowski did not present any evidence to support his request for a Franks hearing.

In United States v. Berg, the Tenth Circuit held that a Kansas Highway Patrol Trooper had reasonable suspicion to detain a driver following a traffic stop based on the trooper's belief that the driver had been driving in tandem with two "escort vehicles," and that his rental car was packed inconsistently with his statement to the trooper that he was moving.

In Donahue v. Wihongi, a Section 1983 case, the Tenth Circuit affirmed the district court's grant of immunity to officers who detained Dr. Donahue. The Court held that Dr. Donahue was detained for public intoxication after he approached officers for help following an altercation with a woman. What started as a consensual encounter became a detention after (1) Dr. Donahue twice denied being intoxicated; (2) the officers continued to question him in a "commanding" tone; and (3) the officers allowed the woman--but not Dr. Donahue--to leave; and (4) the officers told the Doctor that they needed his name and he refused. The Court quoted a Ninth Circuit case for the proposition that "[w]hen a citizen expresses his or her desire not to cooperate, continued questioning cannot be deemed consensual."

The Tenth Circuit also held that Dr. Donahue's detention was supported by reasonable suspicion that he was publicly intoxicated. That suspicion included the woman's report that he was "drunker than Cooter Brown," and the Doctor's agitation and admission that he had been drinking and had had an altercation with the woman.

Tenth Circuit Breviaries

Mon, 01/20/2020 - 19:50
Can a person "enter" the United States for purposes of unlawful entry under 8 U.S.C. § 1325(a)(1) when that person is under a form of official restraint? And does constant surveillance from the time a person walks across the border until her arrest count as official restraint?

Maybe, and no, answered the Tenth Circuit in United States v. Gaspar-Miguel

"For purposes of this appeal, we need not address the broader question of whether 'entry' under § 1325(a) requires freedom from official restraint. We conclude, as pertinent here, that continuous surveillance by border patrol agents, by itself, does not constitute official restraint."