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BOP and COVID: The Best of Times, The Worst of Times – Update for November 24, 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.

INMATES CATCHING COVID, BOP CATCHING HEAT

Last week, we said the Bureau of Prisons was feeling the third wave of coronavirus. The numbers bear us out.

Inmate cases, which have averaged 2,065 active cases a day since Sept 1, hit 3,933 last night. That’s the highest number since the end of July, an increase of 117% since Nov 1 and 16% over a week ago. At the same time, BOP staff cases hit an all-time high of 1,264, up 17% in a week. The virus is again present in all 122 BOP facilities. The BOP has tested 53% of its inmate population, with 28% returning as positive.

BOPCOVID201124

The Dept. of Justice Inspector General reported a week ago that BOP officials made a number of mistakes that hobbled the agency’s ability to control the spread of COVID-19 at FCI Oakdale, Louisiana. The DOJ’s internal watchdog found Oakdale officials “failed to promptly” implement COVID-19 screening protocols, took too long to limit inmate movement and failed to properly quarantine and isolate inmates, among other issues. Specifically, Oakdale lacked adequate personal protective equipment and left inmates with the virus in their housing units for a week without being isolated.

Oakdale was the initial BOP prison to experience a serious COVID-19 outbreak, and chalked up the first of what is now over 150 federal inmate deaths.

Failure201124Predictably, the BOP criticized the report, arguing its officials and staff complied with guidance to screen staff and inmates for COVID, took proper steps to limit inmate movement during the pandemic, and provided proper protective gear and guidance to employees on how to take precautions to protect against the spread of the disease.

Drug manufacturer Pfizer has applied for emergency use authorization for its COVID-19 vaccine from the Food and Drug Administration, to be followed by competing vaccine maker Moderna on December 4, and AstraZenica/Oxford about a month later. An emergency use authorization is a fast-track vaccine authorization that can be processed much more quickly than normal approval. The FDA is expected to take one to three weeks to go through the application and make a decision on issuing the emergency authorization. USA Today reports that vaccine could be approved by the week of December 14.

By the end of December, the government expects to have about 40 million vaccine doses available for distribution. The Pfizer and Moderna vaccines both require two doses given between 21 days apart. The BOP has reportedly told the inmate population that it is working to obtain vaccine for its staff and inmates. However, correctional facilities are currently reported to be included in “phase two” of the vaccine rollout, despite the fact healthcare professionals and prisoner advocates argue that they should be given a higher priority.

“We’re hearing promising news that we are one of the targeted areas to get the first dosage—at least our staff is in the first group, and then our patients with higher risk factors would be next,” said Thomas Weber, CEO of a private company providing medical services to state prisons and detention centers. “However, we have a concern about the availability of enough vaccines and how they’re going to distribute them.”

money160818Finally, 15 members of Congress, all Democrats, wrote to DOJ and the BOP last Tuesday to ask about the changing policies for medical copayments in federal prisons during the pandemic where there have been widespread coronavirus outbreaks. “On March 30, the BOP issued a memorandum waiving the requirement that incarcerated individuals pay ‘copay fee[s] for inmate requested visits to health care providers.’ That waiver expired on October 1, and it is unclear whether that waiver has been extended, given the continued spread of COVID-19 throughout the nation and in federal prisons,” they wrote. “It is also unclear whether the BOP has considered making its copay waiver permanent.”

Office of Inspector General, Remote Inspection of Federal Correctional Complexes Oakdale and Pollock (November 17, 2020)

Reuters, U.S. Justice Dept watchdog: Louisiana prison officials botched COVID-19 pandemic (November 17, 2020)

Atlanta Journal-Constitution, Federal prison in Louisiana left inmates with virus in housing for week (November 18, 2020)

USA Today, When could the first COVID-19 vaccines be given in the US? (November 18, 2020)

Letter to Attorney General William Barr and BOP Director Michael Carvajal (November 16, 2020)

– Thomas L. Root

Two More Circuits Ease Compassionate Release Requirements – Update for November 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.

6TH AND 7TH CIRCUITS FOLLOW BROOKER; CLARIFY COMPASSIONATE RELEASE

If there has been any silver lining to the COVID-19 pandemic at all – and reasonable people can easily argue that there has not been – it might be the explosion in compassionate release motions brought by federal prisoners.

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As I have said before, 18 USC § 3582(c)(1)(A)(i) – which permits federal judges to reduce otherwise-final sentences when “extraordinary and compelling” reasons for doing so exist – has been a “sleeper” for three decades. Until 2018, the “catch” in this sentence reduction subsection that made it such a snoozer was the requirement that only the director of the Bureau of Prisons could bring a motion under the subsection. The Director, of course, is a bureaucrat who would not have petitioned to have his or her own mother released from federal stir.

By the way, nowhere in the statute is the motion called a “compassionate release” motion. Nevertheless, the sentence release motion has been dubbed as such by the BOP, to the point that the terms “compassionate release” and “sentence reduction” are freely interchangeable.

Prior to 2018, the number of occasions on which the BOP asked a court to release an inmate early made blue moons seem like a nightly event by comparison. Congress, tired of the BOP’s nonfeasance in using the sentence-reduction subsection, modified § 3582(c)(1)(A)(i) in the First Step Act, so that now – after paying lip service to the BOP’s former role by asking the Director to bring a sentence reduction motion no one seriously believes the BOP will bring – an inmate may file the motion directly.

Sentence reduction business picked up after First Step’s passage 23 months ago, but it took the pandemic to start the land rush. Somewhere around 4,000 sentence reduction motions claiming that COVID-19’s risk to medically-vulnerable inmates have been filed in the last eight months.

But with no history of sentence reduction adjudication, there has been blessed little judicial guidance as to how a court is to analyze such a motion, the application of the Sentencing Guidelines to sentence reduction motions, and how much detail is demanded in a decision denying such a motion. These are matters of more than academic interest.

According to 18 USC § 3582(c)(1)(A)(i), a sentence reduction motion must show the existence of extraordinary and compelling reasons for the reduction and that the reduction “is consistent with applicable policy statements issued by the Sentencing Commission.” In deciding the motion, the statute directs, the court must “consider[] the factors set forth in section 3553(a) to the extent that they are applicable.”

details170803As is usually the case, the devil’s in the details. Lack of definitive appeals court decisions on what the subsection requires a district court to do has led to dreadfully inconsistent results, with conditions that were extraordinary and compelling to one judge are ho-hum to another. Some judges hold that the outdated Sentencing Commission guidance (it has not been changed to account for the First Step Act, because the Sentencing Commission has lacked a quorum since December 2018) must be followed, regardless of the nonsensical result such guidance dictates. And while many judges provide detail in opinions denying sentence reduction motion, others reject them with one-sentence orders that rob appeal courts of the ability to figure out the basis for the denial.

Finally, we are beginning to get appellate guidance on how district courts should decide 18 USC § 3582(c)(1)(A) petitions. In late September, the 2nd Circuit handed down United States v. Brooker, holding that the limitations of Sentencing Guideline 1B1.13 simply do not apply to sentence reduction motions brought by prisoners rather than the BOP. Last Friday, the 6th and 7th Circuits added materially to the body of law guiding decision-making on sentence reduction motions.

The 7th Circuit decision was a simple one. Tequila Gunn moved for compassionate release, arguing that because her medical condition made her more susceptible to the coronavirus, her sentence should be reduced to time served. The district court denied the motion, because the BOP Director had not determined her condition to be an “extraordinary and compelling” reason for sentence reduction, as required by USSG § 1B1.13.

This was the conundrum: 18 USC § 3582(c)(1)(A) only permits sentence reductions “consistent with applicable policy statements issued by the Sentencing Commission,” and that statement requires that the “extraordinary and compelling” reasons have to be determined by the BOP and no one else. That requirement is still in the Guidelines, the Circuit said, “because the Sentencing Commission has not updated its policy statements to implement the First Step Act. (It can’t, because it lacks a quorum.)”

negativezero201123The 2nd Circuit solved that problem two months ago in Brooker, ruling that § 1B1.13 simply does not and cannot apply to a sentence reduction motion filed by someone other than the BOP Director. The statute says a sentence reduction must be “consistent with” all “applicable” policy statements. The 7th notes that any decision is “‘consistent with’ a nonexistent policy statement. ‘Consistent with’ differs from ‘authorized by’.” Therefore, judges are free to define for themselves what constitutes an “extraordinary and compelling” reason for reduction.

Meanwhile, the 6th Circuit issued a decision last Friday that is comprehensive in its instruction. Not only does the decision follow Brooker – holding that “the passage of the First Step Act rendered 1B1.13 ‘inapplicable’ to cases where an imprisoned person files a motion for compassionate release” – it provides a template for deciding such cases and outlines the detail expected of judges in sentence reduction decisions.

The 6th held that “compassionate release hearings are sentence-modification proceedings that must follow a Dillon-style test. At step one, a court must find whether “extraordinary and compelling reasons warrant” a sentence reduction… At step two, a court must find whether “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission… At step three, § 3582(c)[(1)(A) instructs a court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by steps one and two is warranted in whole or in part under the particular circumstances of the case.”

denied190109Finally, the 6th made clear that judges ruling on sentence reduction motions must “write more extensively in § 3582(c)(1)(A) decisions where the record bears little indication that the district judge considered all the defendant’s evidence and arguments before granting or denying compassionate release,” the Circuit said. “Absent thorough record evidence of the judge’s factual decisions, district courts should not issue single-sentence or otherwise exceedingly slim compassionate release decisions or cite § 1B1.13 or the § 3553(a) factors without any analysis of their requirements,” the appellate court said. “But as long as the record as a whole demonstrates that the pertinent factors were taken into account by the district court… a district judge need not specifically articulate” its analysis of every single 3553(a) factor. Again, we look at what the judge stated about the 3553(a) factors in both the initial sentencing and the sentencing-modification proceedings when determining whether the judge satisfied her obligation to explain.”

The 7th Circuit Gunn decision is welcome for its concurrence with Brooker. The 6th Circuit Jones decision is even better, the most comprehensive opinion on application of the sentence reduction statute to date,

United States v. Jones, Case No 20-3701, 2020 US App. LEXIS 36620 (6th Cir. November 20, 2020)

United States v. Gunn, Case No 20-1959, 2020 US App. LEXIS 36612 (7th Cir. November 20, 2020)

– Thomas L. Root

Bear Hunting – Update for November 19, 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.

SOME DAYS YOU GET THE BEAR…

billybear201119Billy Walters, convicted of insider trading charges in 2017, has filed a Bivens action against five law enforcement officials – including former SDNY US Attorney Preet Bharara – seeking a holding that his due process rights were violated when agents leaked confidential grand jury material to The Wall Street Journal and The New York Times, intended to “tickle the wire” by enticing investigation targets to implicate themselves on wiretaps. The leaks continued for more than a year, with 13 different stories about the investigation.

(A Bivens action, for those who are joining us late, is an action for money damages alleging that federal agents or employees violated one’s constitutional rights. It is so named for the case establishing the right – now rapidly being diminished – that case being Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), in which Mr. Bivens sued federal drug agents who kicked down his door, searched his apartment, and arrested him without a warrant for a drug crime that was never prosecuted).

Billy’s lawyers complained about the leaks at the time, but the US Attorney denounced the complaints as “false’’ and “baseless accusations that are undermined by the facts.’’ Only after the judge permitted Billy some discovery into there origin of the leaks did the US Attorney change his tune, admitting that a senior FBI agent had in fact leaked information and would be punished for it.

But evidence provided to the court showed that Bharara himself, along with a team of five other top prosecutors under him, were aware for two years that the FBI was leaking false information about Billy to the press. “While expressing outrage in selected emails shared with the court,” Forbes reported, “Bharara and his team appeared to do nothing to actually halt the activity.”  The FBI agent was severely lashed with a wet noodle, and retired with full benefits a few years later.

Billy’s judge expressed shock (although not enough shock to acquit Billy):

Mr. Walters is charged with, among other things, tipping material non-public information to another. And to help support that case, the special agent apparently tipped material non-public information improperly to another. That’s what we have here.

The 2nd Circuit later observed that the leaking of confidential grand jury testimony was “serious misconduct and, indeed, likely criminal’’ and “in some respects more egregious than anything Walters did.”

Billy’s complaint, filed by two law firms, seeks compensatory and punitive damages, and a declaration that Billy’s rights were trampled by the US Attorney and his minions.

Billy may have gotten the bear…

Real Clear Politics, Fighting Prosecutorial Leaks (November 11, 2020)

Forbes, Billy Walters Files Lawsuit Against FBI Leaker And US Attorney Team Who Covered It Up (October 30, 2020)

Complaint, Walters v. Bharara, Case 20cv8803 (SDNY Oct 22, 2020)

… AND SOME DAYS THE BEAR GETS YOU

Inmates cannot make a phone call without reading the writing on the wall (literally, it is painted on the wall above the phones in big letters, both English and Spanish) warning that phone calls are monitored and recorded.

Martin Shkreli, the original pharma bro (now a resident of FCI Allenwood Low), discovered that getting locked up wasn’t the end of his legal problems. The Federal Trade Commission sued a company he had run for anticompetitive conduct, and – with the cooperation of the BOP – got recordings of all of his inmate phone calls and emails.

martybear201119King Belshazzar was quite troubled by the handwriting on the wall, but Martin Shkreli is no King Belshazzar. so he talked freely on the inmate phones.  When the FTC told him it had gotten recordings of all of his inmate calls and emails – including communications with attorneys – from the BOP, Marty cried foul, arguing that he had an attorney-client privilege against disclosure, not to mention that the FTC’s possession of the records violated the Privacy Act.

The district court was unmoved. It ruled that under United States v. Mejia – 2nd Circuit precedent that holds an inmate has no expectation of privacy where all of the posted notices tell him otherwise – the court gave the FTC the go-ahead to use the material, except for a battle over four categories of documents. Last week, having rejected the Privacy Act argument, the court ruled that the FTC could use it all.

That should be a cautionary tale for inmates who don’t already believe those postings about calls and emails being monitored.

The bear got Marty…

Order, FTC v. Vyera Pharmaceuticals, LLC, Case 1:20cv706-DLC Dkt 308 (SDNY, November 10, 2020)

– Thomas L. Root

11th Circuit Says ‘Answer All the Questions, Judge’ – Update for November 17, 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.

11TH CIRCUIT SENDS § 2255 MOTION BACK TO DISTRICT COURT FOR CLISBY ERROR

clisby201117A Clisby is not – to the best of my knowledge (and I try to keep up with this sort of thing because my three grandkids expect nothing less) – the hottest new toy this Christmas season. Instead, Clisby is an 11th Circuit decision that requires a federal district court “to resolve all claims for relief raised in a petition for writ of habeas corpus… regardless whether habeas relief is granted or denied.” The holding applies to § 2254 and § 2255 motions alike.

Cliff Senter filed a § 2255 motion claiming that his Armed Career Criminal Act conviction could not stand after Johnson v. United States was decided, because one of the priors it relied on was an attempted Alabama robbery, and – because no such crime was on the books in Alabama when he was convicted of it – it had no elements, and thus could not be matched with the elements test of 18 USC § 924e.

It was a pretty solid argument, but the district court misinterpreted it to be a collateral attack on the attempted robbery conviction. While a post-conviction movant can argue that a state prior conviction doesn’t meet the ACCA test, he or she cannot argue that the state conviction is invalid and should be thrown out. That question needed to be resolved by the state courts that imposed the conviction to begin with. The district court thought that Cliff was attacking the validity of the Alabama attempted robbery conviction, and held Cliff couldn’t do that in a § 2255 motion.

Of course he could not, but sometimes an argument does double duty, and when that happens, the court has to apply it to the issue properly before it, even if it could apply equally to an issue that – if raised – would not properly be before it. Last week, the 11th Circuit reversed the dismissal of Cliff’s § 2255 motion, holding that

“when a habeas petitioner… presents a claim in clear and simple language such that the district court may not misunderstand it,” a district court must address and resolve the claim. In this case, Senter clearly raised the claim that his ‘attempted robbery cannot qualify as a violent felony under either the force clause or as an enumerated offense because it is a non-existent offense and therefore does not have any elements and by misconstruing it as a collateral attack on his state conviction, the district court failed to resolve his actual claim and violated Clisby.”

paperwork201117To be sure, a district judge may grow weary of deciding an especially prolix § 2255 motion – with issue after issue, and each issue having multiple sub-issues which themselves have multiple sub-parts – but that’s what comes with the cool robe and lifetime sinecure. 

This decision remind us that Clisby will cause a case to be sent back until the district court finishes all of the paperwork.

Senter v. United States, 2020 U.S. App. LEXIS 35704 (11th Cir. November 13, 2020)

– Thomas L. Root

Third COVID Wave Breaking Over BOP – Update for November 16, 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.

BOP TRANSFEREES BRING COVID TO FORT DIX, SENATORS SAY

The third wave of COVID-19 sweeping the country apparently does not intend to exempt the Federal Bureau of Prisons. Active inmate cases, which have averaged 1,900 a day since September 1, have shot up last over the last two weeks, hitting 3,163 last Friday. That’s the highest number of BOP cases since the end of July. At the same time, BOP staff cases hit an all-time high of 1,049. The virus is present in 119 of 122 BOP facilities.

BOPCOVID201116

Last week, Government Executive magazine reported that the BOP “has experienced perhaps the worst outbreak of any federal agency per capita, with about 7% of its workforce contracting the virus. All told, more than 2,500 bureau employees have tested positive. Nearly 20,000 federal prisoners have also contracted COVID-19, or about 14% of the federal inmate population.”

The death toll has mounted as well. Three more federal inmates deaths were reported since November 6th, one at USP Tucson and two at the Springfield medical center. Citing a National Commission on COVID-19 and Criminal Justice study, the Washington Post reported last week that “when adjusted for age, sex and ethnicity, the mortality rate in federal prisons is twice that of the general population.”

The BOP has reported that as last Friday that it has tested half of all inmates at least once. The number testing positive inched up a point last week to 26%. One out of four tests has been positive ever since the BOP began reporting testing last spring.

reinfection200831The hottest BOP facilities for COVID-19 last week were USP Tucson (Arizona) with 363 inmate cases, and FCI Fort Dix, New Jersey (233 cases). These were followed by FCI Beaumont Low (Texas), USP Thomson (Illinois), FCI Bastrop (Texas), the FMCs at Butner, North Carolina, and Springfield, Missouri, USP Marion (Illinois), FCI Yazoo Medium (Mississippi), FCI Gilmer (West Virginia), FCI Greenville (Illinois) and FCI Jesup (Georgia), all with 100 or more cases.

The Fort Dix epidemic is especially troublesome, with Congressional criticism raining down on the BOP even as employee unions finger-point. Senators Robert Menendez and Cory Booker (both D-New Jersey) wrote to BOP Director Michael Carvajal last Monday, accusing the BOP of negligently transferring COVID-19 infected prisoners from FCI Elkton to Fort Dix, thus introducing the disease to Fort Dix. The senators said, “It is clear that BOP does not have an effective plan to ensure COVID-19 positive inmates are not transferred between facilities…”

The Philadelphia Inquirer reported last week that “as recently as mid-October, US Attorneys opposing compassionate release motions by Fort Dix prisoners argued that ‘the BOP has taken effective steps to limit the transmission of COVID-19’.” Now, the paper said, “videos purportedly taken by a prisoner inside Building 5812 and circulating among family members show a unit in chaos — debris scattered and trash overflowing — a byproduct of a shortage of staff and healthy inmate workers, according to family members.”

The BOP says all prisoners are quarantined for 14 days and tested prior to being moved. The receiving prison is also to test and quarantine new prisoners for two weeks, which is what Brian Kokotajlo, a BOP union official at Fort Dix, says happened there. He’s skeptical about how things were handled at Elkton. “They said the inmates were tested when they left Elkton, but personally I don’t believe that to be true,” Kokotajlo said. “If they tested them at Elkton, how they made it on the bus and how they made it to us and became positive in a six-hour drive across the state of Pennsylvania, nobody seems to be able to figure that out.”

fingerpoint201116But Joseph Mayle, the Elkton union chief, blamed false negatives produced by COVID-19 rapid testing for infected prisoners being sent to Fort Dix. “My staff here, they’re not going to throw inmates on a bus without testing them,” Mayle said. “If that’s what they’re saying, that’s not what’s happening.”

BOP spokesman Justin Long issued a statement denying that Elkton transfers caused the Fort Dix outbreak. “Contact investigations indicate the infections were not the result of this inmate movement but rather may have originated from the community,” Long said.

In Pekin, Illinois, local residents protested this past weekend, complaining that the BOP is failing to protect inmates from coronavirus and asking the agency to release eligible inmates to home confinement. Dozens of protesters gathering Saturday, “demanding inmate get proper medical care, nutrition and hygiene needed to keep safe from the virus,” a local TV station reported.

The group also alleged that “the BOP’s website is not keeping up-to-date information, saying the 66 confirmed cases within the Pekin prison is a false number,” WMBD-TV reported. “They believe that number is well over 100.”

Washington Post, Prisons and jails have become a ‘public health threat’ during the pandemic, advocates say (November 12, 2020)

Government Executive, Coronavirus Cases Are Spiking at Federal Agencies (November 12, 2020)

Philadelphia Inquirer, COVID-19 outbreak infecting hundreds at Fort Dix is ‘escalating crisis,’ N.J. senators warn (November 10, 2020)

VICE NEWS, Federal Prisons Keep Turning Into COVID Nightmares: ‘Everyone Looks Like Death’ ( November 12, 2020)

WMBD-TV, Pekin community members say federal prison system isn’t taking COVID-19 seriously (November 14, 2020)

– Thomas L. Root

U.S. Attorney Accidentally Violates Brady, Schemes to Cover It Up… Again – Update for November 13, 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.

GOVERNMENT ADMITS TO ‘SUBSTANTIAL’ BRADY FAILURES

brady160314In an October 30th letter, the United States Attorney’s Office for the Southern District of New York admitted to “substantial failures” in disclosing potentially exculpatory evidence, over a month after a Southern District of New York judge excoriated the prosecutors for multiple failures that led the court to dismiss a criminal case with prejudice after a jury had convicted the defendant.

In a September order in United States v. Nejed – a case in which the defendant was charged with export and money-laundering offenses arising from dealing with Iran – the government was found to have repeatedly misled the court and defense counsel as to facts relating to late production of evidence helpful to the defense. Ever since Brady v. Maryland, a 1963 Supreme Court decision, the prosecution has had a constitutionally-defined duty to turn over evidence that may help the defendant.

In Nejad, the government failed to do so. When prosecutors discovered during trial that a crucial piece of evidence had not been provided to the defense, email records showed that they schemed over how to bury the evidence in a massive “document dump” to defense attorneys, in hopes the defense would not notice it.

documentdump201113Ultimately, despite the fact that a jury convicted Defendant Nejad, the Court threw the case out after the Government was caught withholding evidence, and sheepishly agreed to the dismissal.

But that didn’t end things. District Judge Allison Nathan, understandably troubled by the Government’s conduct, issued an order subsequent to the dismissal, in which she observed

it is possible that the issues articulated above, as well as the precipitating factors the Court identifies, are not unique to this case. Indeed, in the last criminal case tried before the Undersigned, the Government also seriously breached its Brady obligation. Following that revelation, the Court was repeatedly assured by the leadership of the USAO that the matter was being taken seriously, would be systemically addressed through training, and would not reoccur. The record before the Court in this case belies those assurances.

It is impossible for the Undersigned alone to address and resolve these issues. Here too, it is thus the Court’s view that these errors should be investigated by DOJ’s Office of Professional Responsibility. Moreover, the manifold problems that have arisen throughout this prosecution — and that may well have gone undetected in countless others — cry out for a coordinated, systemic response from the highest levels of leadership within the United States Attorney’s Office for the Southern District of New York.

The US Attorney’s October 30 letter assured the judge that the mistakes were unintentional and would not happen again. The judge noted in her September order that she had heard that one before…

Memorandum Opinion and Order, United States v. Nejad, Case No 18cr224, 2020 US Dist LEXIS 169686 (September 16, 2020)

Law 360, Feds Admit ‘Substantial Failures’ In Iran Sanctions Case (October 30, 2020)

– Thomas L. Root

Government Seeks to Undo 4th Circuit Rehaif ‘Structural Error’ Decision – Update for November 12, 2020

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GOVERNMENT SEEKS CERTIORARI ON GARY DECISION

The 4th Circuit’s United States v. Gary decision, which holds that Rehaif error in a case is structural and will get the defendant an automatic reversal, is an outlier. Every other circuit deciding the question holds that a defendant challenging his conviction under Rehaif has to show that, but for the error, he would have probably would have won.

guns200304Rehaif error, for those of you joining us late, flows from the Supreme Court’s 2019 decision in Rehaif v. United States. In that decision, the Court ruled that the crime of being a prohibited person (such as convicted felon or an alien in the United States illegally, but there are seven other categories as well). Before Rehaif, it was enough for the government to show that someone knew he or she possessed a gun while being a prohibited person. One did not have to know that he or she was “prohibited.”

This may seem like a distinction without a difference. Hamid Rehaif, a citizen of the United Arab Emirates, came to the U.S. lawfully to attend college. But he flunked out. Nevertheless, he remained in Melbourne, Florida, living openly and even indulging his passion for target shooting at a local gun range. When interviewed by government agents, he was cooperative and expressed his belief he was still entitled to be in the United States.

The government – being the government – didn’t just drive the cooperative Mr. Rehaif to the airport to catch Emirates’ next flight back to Dubai. That would have made too much sense. Instead, it indicted Hamid for being in illegal alien in possession of a firearm and ammunition, a violation of 18 USC §§ 922(g) and 924(a). Hamid’s lawyer did his best to defend Hamid by arguing that he had no idea he was in the United States illegally, but the trial court – based on clearly established law in the 11th Circuit (and most everywhere else) – ruled that whether Hamid knew he was prohibited from possessing a gun or ammo, or that he knew he was a member of a prohibited class under 18 USC 922(g), simply didn’t matter.

dubai201112

It took the Supreme Court to straighten things out (unfortunately for Hamid, two years after he finished his federal prison time and was sent home to the UAE). In Rehaif, the Court said that it was clear that the penalty language of 18 USC 924(a) – which prescribed the punishment for violating 18 USC 922(g) – required that the government prove that a defendant knew that he or she was a member of a prohibited class.

You may ask yourself, “How could someone not know he or she was a convicted felon?” It’s not that simple. The statute does not exactly say “convicted felon.” Instead, it says convicted of a crime “punishable by imprisonment for a term exceeding one year.” That phrase “punishable by imprisonment for a term exceeding one year,” in turn, is defined in 18 USC § 921(a)(20) as not including

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

So the question is whether someone knew that he or she was convicted of (a) a crime punishable by more than a year in prison which (b)(1) was not one of the offenses related to the regulation of business practices, or (b)(2) classified by the state as a misdemeanor, or (c)(1) was expunged or (c)(2) set aside or (c)(3) for which a pardon had been issued or (c)(4) civil rights restored, unless (d) the restoration did not meet enumerated standards.

lost201112Whew. The better question is how someone without a law degree could possibly how whether he or she was a prohibited person or not.

That has not prevented lower courts asked to revisit § 922(g) convictions, generally but inaccurately called “felon-in-possession” convictions, from ruling that a conviction should be upheld if it was unlikely the defendant could have won even if the jury had been told the government had to prove the defendant’s knowledge. Except in the Fourth Circuit: there, the Gary decision established that Rehaif error is “structural,” that is, an error that permeates “the entire conduct of the trial from beginning to end” or “affect[s] the framework within which the trial proceeds…”

The 4th Circuit’s holding that Rehaif is structural error means that this Circuit is the place to be for people trying to get back into court on felon-in-possession charges. But the government, wanting to head that off at the pass, has filed a petition for certiorari with the Supreme Court, challenging the Gary decision. Although petitions for cert filed by defendants has about a 1% chance of grant, not so for the government. Government decisions to file for cert are not all that frequent, and the Supreme Court takes such petitions seriously.

Defendant Gary is to oppose the motion by December 8th.

United States v. Gary, Case No 20-444, Petition for Certiorari filed Oct 7, 2020

– Thomas L. Root

COVID’s a Mess in America… the BOP is No Different – Update for November 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.

THIRD WAVE BREAKING?

Over the past few weeks, the BOP’s official COVID-19 count has not been climbing with the rest of the nation’s, but late last week, the numbers took off, suggesting a third wave may be breaking over the BOP as well as the rest of the country.

plague200406As of last night, the BOP reported 2,418 sick inmates, up a whopping 24% from the Friday before. There are a record 953 sick staff, up 5% last week. Ominously, six federal inmates died last week, including four at MCFP Springfield (Missouri), one at FCI Big Spring (Texas), and one in a private prison.

The current outbreak at FCI Fort Dix illustrates the virulence of COVID. WHYY Radio reported last week that “in October no inmates tested positive. On Thursday, there were 214 positive cases, according to a report from the Federal Bureau of Prisons. It’s the second-highest amount of active cases out of every system in the country.”

After an inmate complained to a federal court that Elkton prisoners transferred to Fort Dix “were placed in a unit that later had 10 inmates test positive for COVID-19,” a federal judge last week ordered the government to “provide details on how the prison has mitigated the spread of COVID-19.”

The Appeal last week ran an interview with Dr. Homer Venters, who has provided expert testimony in several suits against the BOP on COVID in prisons, most recently at Lompoc. Venters was especially critical of the availability of health services:

All these detention settings have ‘sick call’ and that’s the primary way for people to report COVID symptoms and get care. But when you talk to incarcerated people, they routinely tell you that their sick call requests go unanswered, or they have to submit multiple sick call requests just to get a response, or they may get a response that says, ‘Here’s some Tylenol,’ but it isn’t really an assessment or care for COVID. In some cases, those sick call requests get thrown out. And so we have this group of people who, when they seek care for COVID-19, they must use this process to access care. It’s a system that’s broken.

The current COVID hotspots in the BOP system are Fort Dix, Bastrop, Springfield, Tucson, Thompson and Butner, all with over 100 inmate cases each. As of yesterday, the BOP reports it has tested 48.8% of all inmates. The positivity rate remains at 25.6%.

The Appeal, Coronavirus in Jails and Prisons (November 6, 2020)

WHYY Radio, COVID-19 outbreak inside Fort Dix prison is spreading (November 7, 2020)

Burlington County Times, U.S. attorneys for Fort Dix ordered to detail COVID-19 response; cases at prison top 200 (November 5, 2020)

Memorandum Order, R.24, November 3, 2020, Whiteside v. Fort Dix Federal Prison, Case No 1:20cv5544 (Dist. New Jersey)

– Thomas L. Root

Whither Sentence Reform After Biden Win? – Update for November 9, 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.

SENTENCE REFORM DIDN’T WIN LAST TUESDAY, BUT IT DIDN’T LOSE, EITHER

Reform200819Anyone who read the House of Representatives’ version of The First Step Act (which was watered down substantially to satisfy the Republican-led Senate) or, for that matter, exulted at the House’s HEROES Act last May has some idea what an unbridled Democratic-controlled Congress and White House might do to advance sentence reform. Retroactivity, relaxed compassionate release and elderly offender programs, maybe even some relief for people convicted of violent crimes…

We probably did not get that last week. The Democrats still control the House (but with a smaller majority), and the weekend brought us a Democrat for president-elect. The Senate has 50 Republicans and 48 Democrats, however, with the final two Senate races in Georgia not to be decided until January. If even one of the two eventual winners is Republican (which is likely), the Republicans and Majority Leader Mitch McConnell (R-Kentucky) will still rule the Senate.

But that does not mean we won’t see some criminal justice reform in the next two-year Congress. President-elect Joe Biden spent decades in the Senate, and one of his great strengths is the ability to make deals. “And perhaps most importantly,” Politico reported last week, “Biden and McConnell have a real relationship — forged over the years as Senate colleagues and combatants. McConnell was the only Senate Republican to attend the funeral for Biden’s son Beau in 2015, and he’s largely stayed away from GOP attacks on Biden’s other son, Hunter.”

“They have negotiated big things before. They’ve come through some very hard and even bitter fights over judicial confirmations,” Sen. Chris Coons (D-Del.), a close Biden ally, told Politico in an interview. “But I think they’ve managed to stay friends or have a working, professional relationship even in the hardest of times.”

potscooby180713Voters may be ready for change. The Appeal called last Tuesday “a banner election against the war on drugs,” noting that Oregon voters approved a “groundbreaking initiative to decriminalize drugs” – not just marijuana – making low-level drug possession a civil offense, punishable by a fine, rather than jail time. Four other states made recreational pot legal, raising the number of states permitting it to 15.

President Trump, who was himself a reluctant supporter of the First Step Act, reminded everyone during the campaign that Biden was the sponsor of the Violent Crime Control and Law Enforcement Act of 1993,  (which morphed into the Violent Crime Control and Law Enforcement Act of 1994) – legislation that  critics claim is responsible for the large numbers of federal prisons locked up today. Some suggest that that fact gives the president-elect something to live down. For that matter, the vice-president elect, Kamala Harris, was hardly progressive during her days as a prosecutor. Some are already predicting she will lead the sentencing-law reform efforts of the Biden administration.

In his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said priorities that ought to be able to garner the bipartisan support of a Republican Senate and Democratic White House include repeal of mandatory minimums, further reduction of the crack/powder sentencing disparity, making all sentencing reforms retroactive, reinvigoration of compassionate release “so that the sick and elderly are transitioned out of incarceration so long as they do not pose a public safety risk,” and removing barriers to reentry.

bipartisanship201109Berman suggests that Politico’s observation that “’McConnell has already succeeded in his longtime goal of reshaping the judiciary’ has me wondering whether Senator McConnell might be less adverse to giving federal judges significantly more sentencing discretion now that he views so many as the product of his own king-making.”

Politico, America’s new power couple: Mitch and Joe (Nov 5)

The Appeal, How Criminal Justice Reform Fared at the Ballot Box on Tuesday (Nov 5)

Sentencing Law and Policy, Can we be hopeful federal leaders will make deals to advance federal criminal justice reforms in the next Congress? (Nov 6)

– Thomas L. Root

‘You May Be Sick, But You’re Still a Bad Guy’ – Update for November 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.

A COUPLE OF NOTES ABOUT COMPASSIONATE RELEASE…

Two decisions last week delivered some handy reminders to people seeking “compassionate release” sentence reductions under 18 USC § 3582(c)(1)(A)(i) that (1) a defendant’s being sick or prone to get sick is not the only concern of the judge; and (2) there are procedural pitfalls for the unwary.

death200330By now, everyone knows that you have to show “extraordinary and compelling” reasons warranting a sentence reduction. These days, such reasons are usually (but not always) that you have medical conditions that puts you at risk for catching COVID (although a variety of reasons from medical to questions of fairness have supported compassionate release in the two years since defendants first got the right to bring the motions themselves in the First Step Act).

But “extraordinary and compelling” is just part of the showing you have to make. The statute also requires that the court consider the “sentencing factors” of 18 USC § 3553(a). And whether the factors favor grant of your motion is almost solely the judge’s call.

The factors are framed in such terms as consideration of “the nature and circumstances of the offense and the history and characteristics of the defendant” and “the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to provide adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with education, training, medical care, or other treatment.” But what it all comes down to whether the judge thinks the defendant has been locked up long enough.

Keith Ruffin filed a motion with his sentencing court for compassionate release, arguing that his heart problems, high blood pressure, high cholesterol, and blood clots, put him more at risk for COVID. These are all pretty good reasons, according to the Centers for Disease Control and Prevention. But his sentencing judge disagreed that his health concerns were “extraordinary and compelling reasons” for relief, and held that even if they were,  the § 3553(a) sentencing factors argued against a sentence reduction.

lockedup201105Last week, the 6th Circuit upheld denial of Keith’s compassionate release motion. It ignored Keith’s solid argument that the district court had erred in holding that because Keith could currently manage his health conditions, his risk factors were not extraordinary and compelling reasons for compassionate release. Instead, the court said, the district court is pretty much all there is in deciding that cutting Keith loose was inconsistent with the 3553(a) factors.

“These ubiquitous factors,” the Circuit said, “consider such things as the characteristics of the defendant, the nature of the offense, and various penological goals, such as the need to promote respect for law and to protect the public. This last requirement confirms an overarching point: The district court has substantial discretion. The statute says that the district court “may” reduce a sentence if it finds the first two requirements met; it does not say that the district court must do so. Even if those conditions are met, therefore, a district court may still deny relief if it finds that the “applicable” 3553(a) factors do not justify it. And in a reduction-of-sentence proceeding, as at sentencing, the district court is best situated to balance the § 3553(a) factors.”

A district court might abuse its discretion, the 6th said, if its denial was based on a purely legal mistake (such as a misreading the extraordinary-and-compelling-reasons requirement) or if it engaged in a substantively unreasonable balancing of the § 3553(a) factors. Here, the district court considered the amount of time served, his somewhat uneven prison record as evidence of the extent of rehabilitation, and the fact Keith had committed his crimes while suffering from the same health concerns he now relied on to justify compassionate release.

In another case, Art Payton’s compassionate release motion was denied by his sentencing court last July 24th. He filed a notice of appeal on August 10th, 17 days later. Last week, the 6th Circuit dismissed his appeal.

timewaits200325The deadline for an appeal in a civil case is at least 30 days after the final order is issued (and can be more in some cases). But a motion under 18 USC § 3582(c)(1)(A)(i) is a continuation of a criminal case, and thus is subject to the 14-day deadline set out in Fed.R.App.P. 4(b)(1).

Rule 4(b)(4) authorizes the district court to extend the time in which a party may appeal for up to 30 days from the end of the fourteen-day appeal period provided in F.R.App.P 4(b)(1)(A). However, the court must find “good cause” or “excusable neglect” for the failure to timely file a notice of appeal.

The Court sent the case back to the district court to determine whether Art’s excuse – that the prison has been “on an institution-wide lockdown and getting copies in this environment is problematic” – should allow him to file a belated appeal.

United States v. Ruffin, Case No. 20-5748, 2020 U.S. App. LEXIS 33689 (6th Cir Oct 26, 2020)

United States v. Payton, Case No 20-1811, 2020 U.S. App. LEXIS 33965 (6th Cir Oct 28, 2020)

– Thomas L. Root