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Retroactive Crack Law Applies to Some Completed Sentences, 6th Says – Update for February 11, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

ANOTHER CIRCUIT RULES SUPERVISED RELEASE DEFENDANT ELIGIBLE FOR RETROACTIVE FAIR SENTENCING ACT CUTS

The 6th Circuit joined the 4th last week in ruling that a defendant now serving a prison term for violating supervised release could apply for a retroactive sentencing cut under the Fair Sentencing Act, despite the fact he had completed serving the underlying crack cocaine sentence.

supervisedrevoked181106Aaron Woods served 120 months after being convicted in 2001 for distributing crack. After he was released, he was on supervised release for five years, during which time he caught a state marijuana case. His SR was violated, and he was sent back to federal prison for another 37 months for the revocation.

Aaron applied under the First Step Act for retroactive application of the 2010 Fair Sentencing Act sentence cut. The district court held he was ineligible because his current sentence was for violating SR, not for crack.

The 6th disagreed. “Postrevocation penalties relate to the original offense,” the Circuit held. Treating “revocation and reimprisonment as punishment for the violation of the conditions of supervised release” instead of a continuation of the original offense would raise “serious constitutional questions, such as double jeopardy concerns.” Therefore, Aaron was eligible for an FSA sentence cut.

United States v. Woods, 2020 U.S. App. LEXIS 3462 (6th Cir. Feb. 4, 2020)

– Thomas L. Root

Clemency Debate Erupts Anew – Update for February 10, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPER BOWL TRUMP AD SPARKS CLEMENCY DEBATE

President Donald Trump’s Super Bowl ad featuring former federal inmate Alice Johnson fired off a storm of argument last week about clemency and sentencing reform. But the stats and the stories hardly suggest any change in the broken is coming very soon.

kardashian190904Trump stoked inmate expectations in 2018 when he freed Johnson, who had been doing life for a drug conspiracy, after reality star Kim Kardashian argued on her behalf during a White House visit. In fact, the day after Trump commuted her sentence, Trump told reporters, “We have 3,000 names. We’re looking at them. Of the 3,000 names, many of those names really have been treated unfairly… And I would get more thrill out of pardoning people that nobody knows.”

Those thrills have yet to be realized. Since he took office, Trump has granted clemency to only 24 people, with all but five of those people having had “a line into the White House or currency with his political base,” according to piece last week in The Washington Post. “As the administration takes its cues from celebrities, political allies and Fox News,” the Post complained, “thousands of other offenders who followed Department of Justice rules are waiting, passed over as cases that were brought directly to Trump leaped to the front of line.”

The Post noted that for more than 125 years, the DOJ’s Office of Pardon Attorney “has quietly served as the key adviser on clemency, one of the most unlimited powers bestowed by the Constitution on the president. Under Trump, the pardon office has become a bureaucratic way station…” Most of Trump’s grants of clemency have gone to well-connected offenders who had not filed petitions with the pardon office or did not meet its requirements, The Post said.

clemency170206After three years in office, The Post said, Ronald Reagan issued 669 clemency decisions and Obama issued 3,993 petitions between 2009 and 2012, but “Trump has ruled on only 204 clemency requests – 24 approvals and 180 denials. That is the slowest pace in decades.”

The Post’s hagiographic portrayal of the OPA focuses on the wrong metric. Sure “Obama issued 3,993 petitions” in his first three years, but as Reason magazine pointed out last week, those were virtually all denials. So far Trump has commuted just six sentences, “but that is actually six times as many commutations as Obama approved during his first term,” Reason noted.

For decades, federal offenders filed petitions for clemency with the OPA, which assigns a staff attorney to investigate each case. With an annual budget of about $4.5 million, the pardons office employs about 19 people, including 11 attorneys.

“For pardons,” The Post said, “the office looks for acceptance of responsibility and good conduct for a substantial period of time after conviction, among other considerations, according to justice department guidelines. Commutations hinge on the undue severity of a sentence, the amount of time served and demonstrated rehabilitation.”

Former Pardon Attorney Larry Kupers said, “We had impartial lawyers who developed over time an expertise in evaluating applications and the skills to determine whether this is a person who could be a danger to the public. If you leave it to the White House, you are more likely to get arbitrary, capricious pardons that may be perfectly legal but are not what the Founding Fathers had in mind.”

henhouse180307The OPA, of course, is run by DOJ, the very people who prosecuted the people applying for clemency. Sort of the fox being delegated authority to look after the chickens’ welfare. Experts have noted the conflict of interest: an Atlantic article published a year ago complained, the DOJ process “courses through seven levels of review, much of it through a hostile… bureaucracy that tends to defer to local prosecutors who are, in turn, loath to undo the harsh sentences they sought in the first place. Indeed, the First Step Act passed in spite of DOJ opposition because those same prosecutors objected to lowering the mandatory minimum sentences that give them so much bargaining power.”

Meanwhile, the numbers remain sobering. Trump inherited a backlog of more than 11,300 petitions. Nearly 7,600 more have been filed since Trump took office. About 5,900 petitions have been closed during Trump’s tenure because the inmate was released, died or was ineligible. Thus, nearly 13,000 petitions remain pending.

Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog, “it is a darn shame that Prez Trump is promoting his clemency work when he has still granted relatively few commutations. Regular readers likely recall that, back in 2018, Prez Trump talked grandly about considering thousands of clemency requests and Alice Marie Johnson potently advocated that the President free ‘thousands more’ federal prisoners like her. I never really expected Prez Trump to grants thousands of commutations, but I had hoped he would do many more than the six that he has done so far.”

Washington Post, Most Trump clemency grants bypass Justice Dept. and go to well-connected offenders (Feb. 3)

Reason.com, Does Trump’s Super Bowl Ad Signal More Progress on Sentencing Reform? (Feb. 3)

The Atlantic, The Clemency Process Is Broken. Trump Can Fix It (Jan. 15, 2019)

Sentencing Law and Policy, Prez Trump’s reelection campaign premieres ad focused on criminal justice reform during Super Bowl (Feb. 2)

– Thomas L. Root

It’s Called ‘Marketing’ – Update for February 6, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

HAVE MERCY ON AN ORPHAN

Everyone has heard the one about the guy who killed his parents, and then asked the court for mercy because he was an orphan. That’s kind of what happened to Pasquale “Patsy” Rubbo.

bassomatic200206If you are of a certain age (that is, if you have  Medicare card), you recall Dan Akroyd’s Bassomatic. Substitute pot scrubbing for fish cleaning, and you’d havePatsy’s invention, the “Scrubbieglove.”

Patsy pled guilty to fleecing investors out of $6 million to market the Scrubbieglove, a cleaning sensation that did not do so well on the dishes, but cleaned out investors’ wallets slick as a whistle. The glove never made it to market, but the $6 million Patsy and his co-conspirators raised through fraud let them have one whale of a party for a few years.

Patsy signed a plea deal that contained a government promise to recommend a 20% reduction in his sentence in exchange for his cooperation. As well, Patsy promised not to appeal his sentence. But while he was released on bond prior to sentencing, he communicated with a known witness in the case, placing phone calls, exchanging email, and initiating wire transfers, all in an attempt to license the Scrubbieglove through the witness’s company.

promises 200206Patsy’s actions violated the conditions of his bond, which prohibited him from contacting victims or witnesses. Patsy told the government of neither the witness contacts nor his efforts to license the Scrubbieglove rights.

When the government found out, it only recommended a 15% downward departure in Patsy’s sentence instead of the 20% departure anticipated in the plea agreement.

In response to the government’s refusal, Patsy appealed. As for the plea agreement, he claimed the government breach of its 20% pledge relieved him of his appeal waiver.

Last week, the 10th Circuit pitched Patsy’s appeal. The Circuit said the agreement obligated Patsy to cooperate with the government on any matter under investigation. Because he tried to license the Scrubbieglove – “the product at the center of the government’s case” – and withheld the information from the government, Patsy had breached his promise.

toastknife200206The government agreed to move for a reduction as long as Patsy’s cooperation was full and truthful. The agreement stated the government expected to recommend a 20% departure “based on the facts known to the government as of the date of the Plea Agreement.” Thus, the 10th ruled, “the express language shows the government did not unequivocally promise to recommend a departure of a certain percentage… The government unsurprisingly determined that Defendant’s conduct warranted a reduced departure recommendation. Given that Defendant withheld information relating to the government’s investigation, it did not breach the Plea Agreement by recommending a 15% departure at sentencing.”

The government did not breach the agreement. Thus, Patsy was not relieved of the obligation not to appeal.

United States v. Rubbo, 2020 U.S. App. LEXIS 2503 (10th Cir Jan 27, 2020)

– Thomas L. Root

Scam-a-lot: An Oak Falls In The Forest, And Makes A Noise – Update for February 5, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THE MIGHTY OAK HAS FALLEN

oaks200206Hey, all you inmates who signed up in a fevered rush for the Oaks of Justice home release program last year? The one with the fancy satellite monitor? How’s that working out for you?

Remember Oaks of Justice, the outfit run by the woman with many names, who was all the buzz on federal prison compounds last year? A year ago, Oaks was mere days away from springing the first of 1,200 inmates from institutions to home confinement and lawful employment. The nonprofit was noodling with White House officials and Bureau of Prisons bigwigs on kick-starting the program, and inmates were lined up like the commissary when a new Honeybun shipment arrives.

honeybun200206Oaks of Justice had a great shtick: after I talked to Oaks “founder” Joanne Morgan, she had me convinced that the sun rose in the west and set in the east. Her “experts” were fine-tuning the satellite tracking system, which worked in some mysterious way Joanne could not quite explain, and bureaucratic roadblocks were being swept away by White House confederates of Jared Kushner. Sure I thought her website had been put together by 5th graders on a budget, but she said Oaks wanted to spend its money on developing the program, not bells and whistles. And sure I could not quite figure out how the smart watch trackers could communicate with satellites, but Joanne explained Oaks had a scientist who had put it all together. And sure I could not find any statutory authority for what Oaks was planning to do, but Joanne assured me that that was because I had insufficient imagination.

Well, the mighty Oak has fallen… and crushed inmate hopes like a tree trunk hitting a cheap car. Inmates about to depart prison last April are still sitting on the bunks, possessions stuffed into mesh laundry bags awaiting that call to the front gate. And last week, The Marshall Project, a nonprofit focused on criminal justice, ran a lengthy piece by investigative reporter Christine Thompson putting a chainsaw to the mighty Oaks.

It sounded like a good deal for everyone involved,” Thompson wrote. “Participants would return to their families while the federal government would save “billions” on incarceration. Morgan has claimed in emails and phone calls with potential customers that officials with the Federal Bureau of Prisons and President Donald Trump himself support the program.

But attorneys familiar with the federal prison system and a former bureau official said, based on their years of knowledge and experience, that a program of this kind would never happen. A spokesperson for the Bureau of Prisons confirmed in an email to The Marshall Project that the agency has no such deal with the company. And a reverse Google image search shows the photos of the company’s “proprietary” new tracking devices appear to be consumer GPS devices from the Chinese e-commerce site Ali Express, marketed to help monitor confused elderly people or teenage children.

satellitetrack200203Thompson noted that “Morgan — whose real name, according to court records, is Winnie Joanne Barefoot — insisted that the company was legitimate and was nearing approval from the Justice Department but that she could not provide proof.” As the LISA Newsletter of March 11, 2019, reported, “‘We have gotten the go-ahead from the White House’ for the program, Morgan said last Friday, ‘and we are waiting for acceptance of our protocols by BOP.’ Morgan expects BOP approval this week, and the first group of 600 prisoners to enter the program in March. She said two additional groups of 1,000 participants each should enter the program by the end of May.”

By the way, Ms. Barefoot was released from federal prison in 2016 after a stint for banks fraud, but if anyone believes in second chances, I do, and I hardly judge her for that. As for the ever-changing names, I like to call myself “The Potentate of Post-Conviction,” but I don’t introduce myself that way. Like everything else about Oaks, Ms. Winnie Joanne Morgan Barefoot’s bell rang slightly off key.

So what was the scam?  That is what still puzzles people. Each applicant was to pay a $250.00 application fee, but Oaks reportedly told people to wait until the company had BOP and White House approvals. Once the program started, inmates and their families would have to cough up thousands of dollars to participate in the program, but that was disclosed ahead of time, and those sums would be paid when the inmate entered the program. So while Oaks is phony, no one is quite sure what the point of the swindle was, or even for sure that it was a swindle.

oak200206Nevertheless, Oaks crushed a lot of inmate hopes. Thompson told the story of female inmate with the last name Wallace, who had signed up with Oaks and was waiting… and waiting. “‘Prison is like a trial run of death,’ Wallace’s sister told Thompson. ‘You’re still breathing, you’re still getting up, but you have zero decisions about yourself. You have nothing… To have someone promising and promising and never come through—what can I believe?'”

The Marshall Project, Trade Your Prison Sentence for a Smartwatch? – Another dubious get-out-early offer is spreading through federal prisons. Lawyers say it’s a fake (Jan 28)

LISA Newsletter, Oaks of Justice – Forget We Ever Said That (March 11, 2019)

– Thomas L. Root

Living Under the Sword – Update for February 4, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LET’S NOT GET AHEAD OF OURSELVES

Who would not want to be Ronald Mack?

sword200204Ron, his brother Rodney and friend Jesse Opher were never supposed to get out of prison. They were sentenced to LWOPs (“life without parole”) after being convicted of crack conspiracy charges in 2001. But then in 2014, a change in the Sentencing Guidelines that reduced the base offense level for the quantity of drugs charged against them cut their sentences to 30 years. A few years later, the First Step Act let them apply for retroactive application of the Fair Sentencing Act of 2010. In November 2019, same judge who took their futures in 2002 gave them back, reducing their sentences (and that of a fourth man in their case) to time served.

But their freedom may be short-lived. Just as they were beginning to get a feel for their life outside of prison, the four men learned the U.S. Attorney’s Office of New Jersey had filed a notice to appeal their release.

The government had argued the four men were not eligible for reduced sentences because they were also convicted of conspiring to distribute powder cocaine, the penalties for which have not changed under the First Step Act. Their conviction today would still trigger a possible life sentence, the government argued at the November hearing, and the 20 years or so they had served just wasn’t enough.

The judge didn’t buy it. She noted that the government’s original trial case, and how the jury verdict sheet (written by the government) was worded, both revolved around the mandatory minimums that would come from a crack cocaine conviction. In fact, the judge observed, prosecutors were “asking the jury to make the findings that would, in fact, drive the sentence… I just want to tell you when you look at this jury verdict sheet, it is a graphic on the sentencing guidelines disparities between crack and powder cocaine.”

sowwind200205Sow the wind, reap the whirlwind, the judge told the U.S. Attorney.

The men’s lawyers argued that First Step is written to be applied broadly. The judge agreed, saying it was “simple.” The men were convicted of conspiracy to commit a crack offense before 2010, so they are eligible. That’s all First Step requires.

So the government filed its notice of appeal, indeed, filing it before the deadline. In so doing, however, the government got a little ahead of itself, however. A government criminal appeal has to be approved by the Solicitor General. Right now, the appeal is stayed, because Washington has not yet given the New Jersey U.S. Attorney approval to proceed.

Such approval is not automatic. The SG has to consider whether the facts of the case and the judge’s holding are such that the government can win. Right now, the government has a single district court case (which does not bind other district courts) going against its position. If it does not appeal, Ron and his co-conspirators go free after doing about 20 years. If it does appeal and loses, it has a Circuit court precedent that will bind district courts in three states, as well as serve as persuasive authority in the rest of the country.

For years, Ron  expected to die in prison. He has been free for almost three months, but ever since the government’s notice of appeal he is living under the Sword of Damocles. He wonders daily, “Am I going back? “When are they going to stop?,” he asked in a recent interview. “That’s what I want to know. When are they ever going to stop? Are they ever going to stop?”

NJ.com, Judge released 4 N.J. men after nearly 20 years in prison. Now, the feds want to send them back (Jan 26)

Order, United States v. Mack, Case No. 19-3891 (3rd Cir. Jan 14, 2020)

– Thomas L. Root

Ghost Dope Takes a Little Hit – Update for February 3, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

QUESTION AUTHORITY

question200203Anyone looking to take up writing fiction for a living could do worse than to become a presentence report writer for the US Probation Office. More than one defendant has found his or her PSR describing an offense so nasty and a person so rotten that you’d never want to associate with such a person.

Background: Every federal criminal defendant who either pleads guilty or is found guilty has a presentence report prepared by the U.S. Probation Office. The Report, required by Federal Rule of Criminal Procedure 32(c)(1), is supposed to set out in neutral terms information about the offense and the defendant’s background, and propose a calculation of how the Sentencing Guidelines should apply to the crime. In fact, the PSR usually reads like it was dictated by a drunken Nancy Grace, describing the offense conduct based solely on what the U.S. Attorney and law enforcement agents have provided and painting the defendant as something you’d grimace at while you scraped it off your shoe.

The worst departures from reality one finds in PSRs usually come in drug cases, where “ghost dope” can send the Guidelines into low earth orbit. Any drug defendant can tell you about “ghost dope.” “Ghost dope” is the amount of controlled substance a defendant was not caught with, but which existed or did not exist according to the say-so of law enforcement.

nancygrace200203Anyone who has seen the system knows the deal. The most pernicious example is the stash-house sting, where an agent provocateur working for the ATF convinces some down-on-their luck boyz in the ‘hood (and yes, virtually all stash-house sting defendants are black) that there is a drug stash house where drugs and money are stored. The guys are recruited to help rob the stash house. When they arrive at the staging area, preferably with guns (if they can locate them to bring), the hapless defendants are arrested. These cases are legion for “ghost dope:” because the stash house does not exist, the ATF can make up as much crack cocaine is purportedly stored at the stash house. Why rob a drug dealer of five kilos when you can rob him of 20 kilos? And since sentence length is driven by the amount of drugs at issue, a “pretend” 20 kilos locks people up a lot longer than five kilos.

A much more common application of “ghost dope” comes in cases where the defendant is charged with and pleads to, say, 1.44 kilos of cocaine powder, only to discover at sentencing that “two CIs [confidential informants] reported that defendant sold 10 kilos of meth a day for three years.” Attacking such fanciful PSR claims is like shadow boxing, and too often, the district court finds the claim is proven by a preponderance of the evidence because, after all, the PSR says so.

dope200203Joe Helding found himself in that position. He pled to possession of 100 kilos of marijuana, but the PSR cited five confidential informants who had told law enforcement Joel had also possessed “over a pound” of methamphetamine on one particular date, had fronted one of them a couple ounces of meth every day or two for two months, and had been seen by another selling “multiple ounces” of meth on three occasions for $500 per ounce. The PSR, converting the supposed meth weight to pot, set Joel’s drug amount at 4,680 kilos, 32 times what he pled to.

Joel objected to the PSR’s meth findings, arguing that nothing corroborated what the CIs reportedly told law enforcement. Nor, he added, did the PSR include any explanation of why law enforcement found the CI information credible. The district court overruled Nick’s objection, finding that the government had shown his possession of the 4,680 kilos of meth by a preponderance of the evidence. The court reasoned the reports were reliable, because the “confidential informants were able to provide specific information related to the defendant’s involvement in sales of drugs, including dates and quantities.” Thus, the district court said, “[a]bsent contrary evidence, therefore, I overrule that objection. “

Last week, the 7th Circuit reversed. The Circuit said, “Our reading of the sentencing transcript leaves us with the impression that the district court overruled Helding’s objection because the information supplied by the CIs was detailed. While the observation appears accurate, the reasoning came very close to the district court saying it credited the CI information because of its inclusion in the PSR. What concerns us is that this reasoning prevailed over Helding’s objection, with no step being taken to find some modicum of reliability of the CI information…”

“A criminal defendant has a due process right to be sentenced based on accurate information,” the 7th said. “Reliability is a central ingredient of the due process analysis: where the district court sentences a defendant based on the drug-quantity guidelines, it must find the government’s information sufficiently reliable to determine drug quantity by a preponderance of the evidence…” Though the threshold for a sufficient reliability finding may be low, it is not so low as to be met in the face of a defendant’s objection by a confidential informant’s out-of-court statement unaccompanied by any additional support.”

witness191111Here, Joel had never admitted to any meth trafficking, and “the district court saw no affidavits, reviewed no reports from the case agent, and heard no testimony from law enforcement handlers or other witnesses corroborating the drug quantity information. The court relied solely on CI-1 and CI-2’s statements as they were recounted in the PSR, which accounted for over 96% of Helding’s drug quantity.” While how it determines reliability is up to the district court’s discretion, nevertheless, “facing an objection like Helding’s, the district court must take some step to ensure that the CI-provided information has a modicum of reliability.”

United States v. Helding, 2020 U.S.App. LEXIS 2655 (7th Cir Jan 28, 2020)

– Thomas L. Root

Supremes Run Down the ACCA ‘Rabbit Hole’ – Update for January 29, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DON’T HOLD YOUR BREATH WAITING FOR SHULAR

It’s a fool’s game to try to guess the outcome of a Supreme Court case by reading the oral argument. But still, last week’s Shular v. United States hearing shouldn’t have any inmate giving away the contents of his locker in expectation of quick release.

gunwife200130Shular asks the court to interpret the Armed Career Criminal Act definition of “serious drug offense” to require that a prior state conviction find the defendant “knowingly” handled a controlled substance, which Eddie Shular’s Florida prior did not. His precise question is whether the determination of a “serious drug offense” under the ACCA requires the same categorical approach used in the determination of a “violent felony.”

Congress defined a “serious drug offense” to include an “offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance … for which a maximum term of imprisonment of ten years or more is prescribed by law.” The government is arguing that the words following “involving” describe only conduct, regardless of a defendant’s intent.

Justice Alito is clearly skeptical of Shular’s approach. Surprisingly, similar misgivings were voiced by Justices Ginsburg and Kagan, with Gorsuch on the fence but leaning toward the government. Justice Thomas revealed nothing, but is a reliable vote for the government.

Shular argues that without a mens rea requirement, and with the squishy “involving” standard, people could get prosecuted for unknowingly distributing or possessing drugs was misplaced. Justice Alito argued that because ACCA is aimed at repeat offenders, the statute’s penalties are triggered only when a defendant has multiple prior convictions. It was doubtful someone would unknowingly distribute or possess drugs twice.

bunnygun190423Justice Breyer asked the government whether its interpretation of “involving” as not including a mens rea requirement would sweep in prior convictions that only tangentially or remotely involved controlled substances. SCOTUSBlog observed that “although Breyer’s skeptical questioning of the government is often a good sign for a criminal defendant, it is unclear if there are five votes for Shular. Some of the court’s textualists had serious misgivings about Shular’s interpretation, and several justices seemed eager to disavow that interpretation to the extent it required courts to construct generic definitions of offenses… The one concern that seemed to unite several of the justices (including unusual bedfellows Gorsuch and Breyer) was the uncertain and potentially expansive reach of the government’s interpretation of the ACCA. Time will tell whether the court is willing to throw the dice and take the risk of going down another ACCA rabbit hole, this one about the possible reach of the word ‘involving’.”

SCOTUSBlog, Argument analysis: Another ACCA rabbit hole? (Jan. 21)

Sentencing Law and Policy, SCOTUS to contemplate yet another level of ACCA jurisprudential hell with Shular oral argument (Jan. 20)

– Thomas L. Root

The Short Rocket… – Update for January 27, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

What’s Mine Is Mine…

rocket-312767The presentence report is one of the most valuable documents an inmate can have access to in working on post-conviction motions, as well as on prison-related issues. It controls access to drug programs, halfway house, earned time credits… just about everything that the BOP mandates or prohibits is based on what staff can glean from the presentence report.

The BOP does not permit you to keep a copy in your legal materials, but that does not mean you cannot have one at home.

More than one prisoner has run into a prior attorney saying he or she is not allowed to provide the PSR to a defendant. That happened to Kevin Marvin, whose judge had a policy that a defendant could go over his or her PSR, but was not allowed to have a copy. Kevin’s lawyer obeyed the judge, but at sentencing, Kevin complained to the judge that he wanted a copy of his PSR. She turned him down, saying, “There is confidential information in the PSR that would be harmful” to Kevin and his family if it were made public.

Last week, the 7th Circuit ruled that Federal Rule of Criminal Procedure 32(e)(2) requires a probation officer to give the PSR to “the defendant, the defendant’s attorney, and an attorney for the government at least 35 days before sentencing.” And “give” means “give—that is, transfer—the PSR to not only the defendant’s attorney, but also the defendant. Under its plain meaning, the rule cannot be satisfied by giving the PSR only to the defendant’s and government’s attorneys; the probation office also must also give the PSR to the defendant.”

The Circuit noted that a defendant’s possession of a PSR in prison could be dangerous, and suggested a district court could put reasonable limits on possession. But a blanket prohibition of a defendant possessing his or her PSR violates Rule 32(e)(2).

United States v. Melvin, 2020 U.S. App. LEXIS 2262 (7th Cir. Jan. 24, 2020)

I Promise to Do Whatever

New York assemblyman Nathan Silver was convicted of seven counts of Hobbs Act extortion under color of right and honest services fraud. The evidence on three of the counts was that in exchange for payments, he promised to take action favorable to the people bribing him “as the opportunity arose.”

money170419The three counts accused Nathan of taking bribes in exchange for agreeing to help out on whatever he might be able to do for the payors in the future. The Circuit said that while bribery does not “require identification of a particular act of influence, we do agree that it requires identification of a particular question or matter to be influenced. In other words, a public official must do more than just promise to take some or any official action beneficial to the payor as the opportunity to do so arises; she must promise to take official action on a particular question or matter as the opportunity to influence that same question or matter arises.”

United States v. Silver, 2020 U.S. App. LEXIS 1737 (2nd Cir Jan 21, 2020)

Thank You For Your Service

Three 6th Circuit Judges who never served a day of their lives in the armed forces, let alone ever got shot at, reversed a one-day sentence imposed on a defendant who showed that his child pornography offense was a result of the horrific combat PTSD he suffered from the Iraq war.

service200127The defendant’s Guidelines base offense level was 15, to which the same enhancements that affect virtually every child porn defendant were added, yielding a Guideline sentencing range of 78-87 months.

The district court rejected the enhancements, complaining that “everyone” who is brought into federal court for possessing child porn receives the same enhancements, which “makes it impossible to distinguish between individual defendants.” But the Circuit held the district court failed to consider “the retributive purposes” of the enhancements, and “its disagreement with the Guidelines cannot justify its decision to ignore the delineated enhancements.”

ptsd200127What’s more, the 6th said, the sentence was substantively unreasonable. “By focusing on the defendant’s PTSD diagnosis to the exclusion of other considerations,” the Circuit said, “the district court failed to acknowledge analogous cases within this circuit… and cast the defendant more as the victim than the perpetrator, stating that his crimes were ‘the result of his voluntary service to his community and his country’ and ‘an unintended consequence’ of his decision to serve in the Army.” Dismissing the science found to apply by the District Court, the appellate panel opined that ‘knowing possession of child pornography… is not a crime that just happens to a defendant’.”

The defendant will return to the District Court for resentencing.

United States v. Demma, 2020 U.S. App. LEXIS 2326 (6th Cir Jan 24, 2020)

– Thomas L. Root

I’m Gonna Mail Myself to You – Update for January 23, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

TORT CLAIM ADMINISTRATIVE REVIEW SUBJECT TO MAILBOX RULE, 7TH CIRCUIT SAYS

mail200123Prisoners face a procedural snare in trying to file lawsuits, and the many pleadings related to them, on time. An inmate prepares a mailing and turns it over to the prison mail system. That system delivers it to the Postal Service, usually in a timely manner, but often enough, only when the chronically understaffed prison staff gets around to it.

Inmates’ lack of control over delivering legal filings to courts have led to many procedural deadlines being blown, and meritorious legal claims being lost. That lack of control was behind the Supreme Court’s adoption of the “prison mailbox rule” in Houston v. Lack. The rule holds that a court filing is considered to be received by the court the moment an inmate deposits it in the institution legal mail system.

The “legal mail” system may vary a bit from institution to institution, but generally an inmate delivers a completed mailing with proper postage to a designated correctional officer. That officer stamps the envelope with a “legal mail” stamp and logs receipt of the item in an official record. When the inmate has done that, the item is deemed received by the court at that moment, regardless of how long it may take to arrive at the court.

The “mailbox rule” has been written into the Federal Rules of Appellate Procedure 4(c) and the Rule 3(d) of the Rules Governing § 2255 Proceedings, and applies to other federal court proceedings as well.

prisonmailbox200123Last week, the 7th Circuit broke down one of the last “mailbox rule” barriers. Before filing a Federal Tort Claims Act case (which is the only means of suing the government for negligence and other tort claims), a prisoner has to exhaust administrative remedies by sending the claim on federal form SF-95 to the Bureau of Prisons regional office. The BOP has always required that the form be received at its office by the deadline, which is two years after the incident giving rise to the tort claim.

The 7th held that “pro se prisoners face the same obstacles sending administrative forms as they do court documents. For both filings, the pro se prisoner has no choice but to entrust the forwarding of his filing to prison authorities whom he cannot control or supervise.”

The 2nd Circuit is the only other circuit to share the 7th’s holding. Other circuits, especially the 5th, have so far refused to extend the “mailbox rule” to administrative filings.

Censke v. United States, 2020 U.S. App. LEXIS 1580 (7th Cir. Jan. 17, 2020)

– Thomas L. Root

Nasty, Brutish Week for the Hobbs Act… But a Ray of Sunshine, Maybe? – Update for January 22, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DARKEST HOUR FOR HOBBS ACT JUST BEFORE DAWN?

violent170315In the wake of last summer’s United States v. Davis Supreme Court decision, a number of federal defendants began asking whether attempting to commit or aiding and abetting a Hobbs Act robbery (18 USC § 1951) can be considered a “crime of violence” that will support an 18 USC § 924(c) conviction and mandatory add-on sentence for possession or use of a gun in the underlying offense. In other words, a crime that any reasonable person might think is violent may not be quite violent enough.

A primer: Under 18 USC § 924(c), anyone who commits a drug trafficking offense or a crime of violence while possessing a firearm is sentenced for the underlying crime, and then hit with a mandatory additional sentence of at least five year and up to life in prison. The minimum sentences increase if the defendant brandished the gun (minimum additional seven-year sentence) or actually fired it (minimum additional seven-year sentence). The hot arguments over the past decade have been what makes an underlying crime a “crime of violence,” with Davis being only the latest case to take up the question.

And yesterday, the Supreme Court heard arguments in Shular v. United States, which could bring the same kind of scrutiny to what constitutes a drug offense that Davis and its antecedents brought to crimes of violence.

Enough background… now for the news. Last week was not especially helpful to defendants hoping that Hobbs Act robbery might be found to be other than a crime of violence. Parts were nasty and brutish. But, mercifully, those may also be short.

First, the Supreme Court denied certiorari on a closely-watched petition filed in Mojica v. United States, which asked indirectly whether a § 924(c) conviction could be based on a conviction for aiding and abetting a Hobbs Act robbery. Mojica argued that aiding or abetting a Hobbs Act robbery was not a “crime of violence” after Davis, because viewed categorically, a Hobbs Act robbery could be committed without using or threatening force. Although there were early signs of Supreme Court interest in the case, brought by talented post-conviction attorney Brandon Sample, certiorari was denied on Jan. 10.

violence180508Meanwhile, the 7th Circuit rejected claims that an attempt to commit a Hobbs Act robbery is not a crime of violence under the elements test of § 924. Because a Hobbs Act robbery qualifies as a crime of violence, the Circuit said, and because a jury has to find the defendant intended to commit the robbery in order to convict him for attempt, attempted Hobbs Act robbery is a “valid predicate offense” for 924(c).

One ray of sunshine fell in the 9th Circuit, which in an unpublished opinion said, “We accept the government’s concession that conspiracy to commit Hobbs Act robbery is not a crime of violence under 18 USC 924(c)(3) in light of the Supreme Court’s decision in U.S. v Davis… Therefore, we vacate defendants’ convictions for carrying and discharging a firearm in furtherance of a crime of violence.”

Robber160229A second ray of light may have flickered the week before. An alert reader commended my attention to Judge Sterling Johnson’s fascinating holding in United States v. Tucker, handed down January 8th. A defendant was charged with conspiracy to rob a Brooklyn gas station and an attempt to rob the station, both Hobbs Act offenses. (How something so criminally prosaic as robbing a gas station became a federal offense is a question I’ll leave for another day.) He was also charged with two § 924(c) offenses, one for possessing a gun during the conspiracy to rob and another for possessing a gun during the attempt to rob. If convicted of the 924(c) offenses, defendant Tambhia Tucker would have had a minimum of ten extra years added to whatever he might get for the conspiracy and the attempted robbery.

Tambhia filed a pretrial motion to dismiss both 924(c) counts, arguing that after Davis, neither a conspiracy nor an attempt could support a 924(c) conviction. Judge Johnson agreed, holding that Davis made short work of the 924(c) connected to the conspiracy. As for the attempt, the Judge noted that in the 2nd Circuit, previous holdings have established that conducting surveillance of an intended robbery target, or even just obtaining a getaway car for use in a robbery, was enough to convict for attempted Hobbs Act robbery. The Judge concluded that

it is incorrect to say that a person necessarily attempts to use physical force within the meaning of 924(c)’s elements clause just  because he attempts a crime that, if completed would be violent… The defense reasonably interprets “surveillance” as the “minimum criminal conduct,” necessary to convict for attempted Hobbs Act robbery.  Thus, the question becomes whether a person conducting surveillance of a target with the intent to commit robbery necessarily uses, attempts to use, or threatens the use of force… A person may engage in an overt act — in the case of robbery, for example, overt acts might include renting a getaway van, parking the van a block from the bank, and approaching the bank’s door before being thwarted — without having used, attempted to use, or threatened to use force. Would this would-be robber have intended to use, attempt to use, or threaten to use force? Sure. Would he necessarily have attempted to use force? No.

As Tucker has pointed out, in the Second Circuit, even less severe conduct, such as “reconnoitering” a target location or possessing “paraphernalia to be employed in the commission of the crime,” can constitute a substantial step and lead to an attempt conviction… Accordingly… this court finds that given the broad spectrum of attempt liability, the elements of attempt to commit robbery could clearly be met without any use, attempted use, or threatened use of violence.

Judge Johnson dismissed both 924(c) counts.

lastword200122This will hardly be the last word on an attempted robbery offense, but it certainly advances the debate.

Mojica v. United States, Case No. 19-35 (cert. denied Jan. 13, 2020)

United States v. Ingram, 2020 U.S. App. LEXIS 1531 (7th Cir. Jan 17, 2020)

United States v. Soto-Barraza, Case No. 15-10856 (9th Cir. Jan 17, 2020) (unpublished)

United States v. Tucker, 2020 U.S. Dist. LEXIS 3035 (E.D.N.Y. Jan. 8, 2020)

– Thomas L. Root