This week:

Liar, liar, pants on fire

It ain’t over ‘til it’s over

It wouldn’t be Christmas without a Grinch

Sentencing Commission begins to weigh public
       comments on “crimes of violence” amendment

Congressional sentence reform: A lot of talking going
       on (and some strange alliances being formed)

LIAR, LIAR, PANTS ON FIRE

When DEA agents showed up at Mike Thompson’s apartment, the officers asked if Thompson would consent to a search. Thompson eventually agreed, but he later moved to suppress the evidence they found, arguing he was coerced because the officers threatened to arrest his sister and girlfriend unless he let the search go on.

The District Court sided with the DEA agents, finding Thomp-son’s version of events not credible.   After Thompson’s motion to suppress was denied, a jury convicted him. His presentence report recommended a two-level enhancement for obstruction of justice on the grounds Thompson lied during the suppression hearing, noting: “The Court expressly characterized Mr. Thompson’s testimony as equivocal inconsistent, and contradictory. The Court concluded that his conflicting testimony on this central issue could not be credited.”

Thompson fought the enhancement, maintaining he “made [the disputed] statements believing that they were true.” But the sentencing judge didn’t rule on his objection, instead just saying, “Okay, I think the PSR accurately has calculated the guideline range.”

Last week, the 2nd Circuit reversed.

The world is full of false testimony. But contrary to what a lot of people think, most of the falsehoods that come out of witnesses’ mouths are not lies. Instead, they result from mistaken memory, poor perception, confusion over the questions, or nervousness on the stand.   In Mike Thompson’s case, his testimony about how he was threatened with the arrest of his family was pretty clearly how he perceived it. But he was ambiguous and vague on the details. The Court of Appeals said perjury requires more than a false statement. It must be a false statement made with “willful intent … rather than as a result of confusion, mistake, or faulty memory.” A district court cannot find obstruction merely because a court credits the testimony of one party over another does not necessarily mean the other party lied. The Court of Appeals said that “such a per se rule would … leave no room for consideration of possible mistake, confusion, or honest belief.”

The 2^nd Circuit said that if a defendant objects to an obstruction-of-justice enhancement based on perjury, district courts must make a finding that the false testimony was intentionally made. In other words, before a court can call a defendant “liar, liar,” it has to make a detailed finding that his pants really are on file.

United States v. Thompson, Case No. 14-2267 (2^nd Cir. Dec. 9, 2015) (to be published)

IT AIN’T OVER ‘TIL IT’S OVER

Memo to guys on supervised release: If you get violated, and you’re in front of the Judge, don’t laugh.

Ray Ochoa didn’t adjust to supervised release after he got out of prison, and finally was sent to a residential reentry center by his Probation Officer. As the court described it, things did not go well: Ochoa “demonstrated argumentative and disrespectful behavior towards the” RRC staff and his probation officer. His supervised release was violated. At sentencing, the Judge warned Ochoa “you make your choices and we respond to them,” then sent him back to prison for a year and a day.

As the Court explained Ochoa’s appeal rights, Ochoa started laughing about the sentence. That was too much for the Judge, who said “you just talked yourself into more time … I just lectured you about respect … and now you laugh at the court.” Figuring the Ochoa hadn’t gotten it yet, the Court said “you that won’t learn without getting the maximum.” He upped the sentence to two years.

Ochoa appealed, arguing that the Court’s 12-month sentence was binding the moment the Judge imposed it, and couldn’t be changed. The 9th Circuit disagreed, holding that a sentence is not final when there is no formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished. The initial year-and-a-day sentence was not binding within the meaning of Rule 35, and neither 18 U.S.C. Sec. 3582(c) nor Rule 35 deprived the district court of jurisdiction to alter the sentence due to Ochoa’s apparently disrespectful conduct during the ongoing sentencing hearing.

The District Judge was right: Ochoa made his choices. The court responded.

United States v. Ochoa, Case No. 14-10124 (9th Circuit, Oct. 22, 2015)

YOU MUST ACT NOW

Johnny Carson’s old sidekick Ed McMahon used to shill for some old folks life insurance on TV. He would look sternly into the camera and intone, “You must act now.” Good advice for inmates looking to file Sec. 2255 motions – the statute has specific deadlines for filing, and you ignore those to your detriment.

Weldon Gilbert found that out. After pleading guilty to a variety of offenses, he had buyer’s remorse. And who could blame him? The plea agreement recommended a sentencing range of 228 to 300 months and required Gilbert to forfeit his house, helicopter, seaplane, and speedboat to pay restitution. In November 2009, the district court sentenced Gilbert to 300 months but delayed a restitution order pending sale of assets.

Selling all of Gilbert’s stuff took awhile. Gilbert’s lawyer supposedly told him his deadline to file a Sec. 2255 motion wouldn’t run until a year after the court entered the final restitution order, which finally happened in fall 2011. Gilbert filed his Sec. 2255 a year after that. But the district court thought his deadline had run out in 2010, and dismissed the motion.

On appeal, Gilbert argued that his Sec. 2255 deadline didn’t come until a year after his 2011 restitution judgment. He contended that the Fat Lady had not sung until the time to appeal the restitution order had passed, almost two years after his 300-month sentence was handed down.

Sec. 2255(f) sets a one-year period of limitation for filing that runs from the date on which the judgment of convic-tion becomes final. The 9th Circuit held that when a judg-ment imposes a sentence but leaves restitution to be determined, the one-year statute of limitations does not restart when the restitution order is later entered. It noted that several statutes, including 18 U.S.C. Sec. 3582(b), state that a “sentence to imprisonment” is a “final judgment,” and cited a 1937 Supreme Court case that held bluntly that “final judgment in a criminal case means sentence. The sentence is the judgment.”

Gilbert’s last line of defense was that the deadline should be waived – a doctrine known as equitable tolling – because his lawyer gave him bad advice. The Court of Appeals held that an attorney’s bad advice is not an “extraordinary circumstance.” Inasmuch as inmates have no constitutional right to counsel on a Sec. 2255 motion, ineffective legal counsel doesn’t warrant equitable tolling.

Remember that. When it comes to post-conviction motions, you’re on your own. Count carefully.

United States v. Gilbert, Case No. 13-36006 (9th Cir., Dec. 7, 2015) (to be published)

IT WOULDN’T BE CHRISTMAS WITHOUT A GRINCH

A group of current and former AUSAs sent a letter to the Senate last Thursday arguing against pending bipartisan legislation that would roll back mandatory minimum sentences for drug trafficking and other crimes.

The National Association of Assistant United States Attorneys says sentencing laws enacted in the 1980s led to dramatic dip in crime, a claim disputed by many crimin-ologists. “Our system of justice is not broken,” according to NAAUSA – whose members’ bread and butter is locking people up for a long time. “Mandatory minimums and proactive law enforcement measures have caused a dramatic reduction in crime over the past 25 years, an achievement we cannot afford to give back.” The letter called for leaving the current sentencing regime alone.

THE SENTENCING COMMISSION WEIGHS PUBLIC COMMENTS ON “CRIMES OF VIOLENCE” AMENDMENT

Last summer, the United States Sentencing Commission proposed a change in its definitions of what kinds of crimes of violence will support a “career offender” enhancement under the Sentencing Guidelines. On Dec. 5, the Commission published comments on the amendment filed by interested parties on the topic.

The proposed amendment will bring the Guidelines definition in line with the Johnson v. United States decision by striking the residual clause from the definition. The effect of the change means that, going forward, many offenses that used to be lumped under the “violent felony” label – like fleeing a cop, reckless endangerment and resisting arrest, just to name a few ¬– will no longer qualify a defendant for “career offender” status.

The other big change proposed is to clean up the definition of felony. The amendment defines “a crime of violence or a drug trafficking offense is a ‘felony’ only if it was classified at the time the defendant was initially sentenced as a felony (or comparable classification) under the laws of the jurisdiction in which the defendant was convicted.”

The amendment won’t immediately benefit people currently doing time. Remember the Guidelines “two-step.” First, the Sentencing Commission has to amend the Guidelines to give relief to people who have not been sentenced yet. Then, the Commission has to conduct a separate proceeding to decide whether to make the Guidelines change retroactive to people already sentenced.

The Sentencing Commission has not yet talked about whether its proposed change should be retroactive. But that didn’t keep some of the commenting parties from addressing it. The Depart-ment of Justice, a couple of county sheriffs and a group of probation officers said that they opposed any move to make the “crime of violence” changes retroactive.

Meanwhile, organizations of public defenders, the Drug Policy Alliance, FAMM and an organization of private lawyers all noted their support for the amendment and for retroactivity.

The Commission plans to adopt a final form of the “crimes of violence” amendment before February. If the Commission would decide to consider retroactivity, it would likely propose to do so early next year.

CONGRESSIONAL SENTENCE REFORM: A LOT OF TALKING GOING ON

On December 3, President Obama met with 13 members of the House and Senate who are leading criminal justice reform in Congress to discuss strategy and the state of the issue in Congress. Discussion focused on the leading proposals that have been voted out of committee in the House and Senate, H.R. 3713 and S. 2123, which include substantial relief for Federal prisoners serving drug and gun offenses.

Meanwhile, last Wednesday, FBI Director James Comey told the Senate Judiciary Committee that he objected to the term “mass incarceration.” Although he praised efforts to achieve “more just” federal sentencing, he said the discussion must be thoughtful, based on a fair and honest understanding of how far we’ve come slashing the crime rate, and without resort to language that distorts reality.

A Bloomberg story last week warned that Federal criminal reform is not yet “a done deal. All sides agree action is essential by early next year or the push will get ensnared in presidential politics. Republican contenders Ted Cruz and Donald Trump already inveigh against putting criminals back on the street.”

We’ll report every week on the status of legislation, whether it’s moving forward or just standing still.

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