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It Wasn’t a Lie, Just a “Mishandled” Communication – Update for October 4, 2019

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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.

MDC BROOKLYN’S PROBLEMS EXISTED LONG BEFORE LAST JANUARY

Last January’s power outage at MDC Brooklyn did not cause the heating problem that left inmates freezing in their cells, according to a report issued last week by the Dept. of Justice Inspector General. Instead, heat issues at the MDC had been a continuing problem well before the January 2019 fire that caused a partial power outage.

freeze191004Prison officials had known that the heating problem was a longstanding issue that had never been fixed. The heat problems were due to a lack of equipment to monitor temperatures in the jail, which reached as low as 59 degrees a week before the power outage and often went above 80 degrees even in the winter months, the report found.

The investigation also found that prison officials mishandled the power outage.

As half a dozen judges and advocates suspected in the days after the outage, inmates were left trapped inside without access to their lawyers or information about why they couldn’t visit with family members, the report found. “This is particularly problematic in view of the facility’s population of pre-trial detainees, some of whom may have required daily access to counsel to prepare for trial,” Inspector General Michael Horowitz said. Prison officials also didn’t communicate with the legal counsel, relatives and the public and mismanaged two medical issues that happened during the outage, the report said.

liar151213The IG’s report was immediately criticized by some commentators. The MDC warden at the time, Herman Quay, was accused of lying about conditions during the outage to the public, to the media and even to the U.S. Attorney. He has since been promoted and a new warden was installed at MDC.

The Intercept complained that the report “relies heavily on the accounts of the very officials who presided over the crisis, draws minimally from the experiences of the people who endured it, and seems more preoccupied with the episode as a public relations blunder than as a humanitarian disaster. The report does not address the chronic deception in jail officials’ statements during and after the crisis.”

“This report confirms that there have been longstanding management problems at MDC that must be rectified,” said Rep. Nydia Velázquez (D-Brooklyn).

In a response to the investigation, Politico reported, the BOP said it will complete an upgrade to its heating, cooling, and ventilation equipment. It also agreed to begin giving inmates sweat suits and thermal underwear as part of their standard-issue clothing package until all the heating problems are resolved.

DOJ Office of Inspector General, Review and Inspection of Metropolitan Detention Center Brooklyn Facilities Issues and Related Impacts on Inmates (Sept. 26)

Politico, Investigation finds widespread infrastructure, leadership failures at Brooklyn federal jail (Sept. 26)

The Intercept, Inspector General Report Treated Freezing Federal Jail As A PR Blunder Rather Than A Humanitarian Disaster (Sept. 28)

– Thomas L. Root

Trump’s Not Feeling the Love from First Step Act – Update for October 3, 2019

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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.

TRUMP SOUR ON CRIMINAL JUSTICE REFORM

When President Trump started planning his reelection last spring, White House senior adviser Jared Kushner told his father-in-law he should highlight last year’s passage of the First Step Act. Kushner reiterated the positive selling points of that bill, but Trump wasn’t interested. He complained and told Kushner he didn’t think his core voters would care much about a bipartisan deal.

angrytrump191003Trump “is telling people he’s mad” at how criminal justice reform has panned out, according to a person close to the president. “He’s saying that he’s furious at Jared because Jared is telling him he’s going to get all these votes of all these felons.”

Politico reported that unidentified White House officials congressional aides and friends of the president, say that Trump no longer sees criminal justice reform as a résumé booster heading into 2020.

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog last Tuesday that Trump’s change of heart “portends some dark clouds for federal criminal justice reform efforts in the months and perhaps years ahead.” But one White House official said, “It would be difficult to say it’s a change of heart. I don’t think his heart was ever really in it.”

Politico, Trump snubs Jared Kushner’s signature accomplishment (Sept. 24)

Sentencing Law and Policy, Prez Trump has reportedly soured on politics of criminal justice reform after FIRST STEP Act achievement (Sept 24)

– Thomas L. Root

Dog Bites Man: Vendor Sells Bad Food to BOP – Update for October 2, 2019

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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.

WEDNESDAY IN THE CHOW HALL WILL NEVER BE THE SAME

For those of you unfortunate enough not to have experienced it firsthand, we offer an explanation: Wednesdays are always hamburger days in the Bureau of Prisons chow halls nationwide. While it’s true that the Burger King would be dethroned for selling a burger like the one that’s standard fare in the BOP, still, the Wednesday midday meal is a brighter spot than the meals for the other six days of the week.

Until now.

badburger191002Two meatpacking plant executives pled guilty last Tuesday to their role in a scheme to sell 800,000 lbs. of bad meat to the BOP, according to the US Attorney for the Northern District of Texas.

According to the plea agreement, the two men admitted to selling uninspected, misbranded, or adulterated meat – including whole cow hearts labeled as “ground beef” – to 32 prisons in 18 states.

West Texas Provisions, Inc. president Jeffery N. Smith and operations manager Derrick Martinez pled guilty to conspiracy to defraud the United States. The BOP paid about $1 million for the bad meat between October 2016 and August 2017.

West Texas Provisions marketed uninspected meat as “USDA inspected.” The company processed whole cow hearts (not permitted in ground beef products) at nights, when inspectors were not present, and labeled it “ground beef.” The defendants often kept the lights off while processing uninspected meat, hid uninspected meat in the freezer while inspectors were in the building, and distracted inspectors from looking at questionable product.

Bon appetit.

US Attorney’s Office for the Northern District of Texas, Meat Packing Plant Execs Plead Guilty to Selling $1 Million in Adulterated Ground Beef to Federal Bureau of Prisons (Sept. 25)

The Crime Report, Meat Executives Plead Guilty to Selling Bad Beef to 32 Prisons (Sept. 26)

– Thomas L. Root

It’s Gonna Be a Lo-o-o-ong Day – Update for October 1, 2019

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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.

SUMMER’S OVER, BACK TO WORK

The Supreme Court’s summer recess ends today with the annual “Long Conference,” where the Court will take up the backlog of 1,500+ petitions for certiorari that have piled up since June.

vacationSCOTUS180924So far, the three most consequential cases on the docket when the Court holds opening day next week are Shular v. United States, which asks whether the categorical approach should be used on prior drug convictions for the Armed Career Criminal Act; Banister v. Davis, which asks whether a Rule 59(e) motion in a § 2255 proceeding is subject to the second-or-successive rules of the Gonzalez v. Crosby and 28 USC §2244, and Carpenter v. Murphy (now named Sharp v. Murphy), asking which authority (the state or federal) has jurisdiction to prosecute major crimes allegedly committed in territory covering about half of the state of Oklahoma. It sounds dry, but it could invalidate thousands of Oklahoma convictions, and thus affect everything from criminal histories to ACCA and 28 USC § 851 enhancement cases.

SCOTUSBlog, Overview of the court’s criminal docket for OT 19 – sizeable and significant (Sept. 9)

– Thomas L. Root

You’re Not Exactly a Felon Yet – Update for September 30, 2019

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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.

CONDITIONAL DISCHARGE NOT A CONVICTION

Tyrius Smith had a prior North Carolina case in which he had pled guilty, and then been “conditionally discharged.” But when he was caught with a gun, the Federal district judge called his prior a felony, and Ty was convicted of being a felon in possession of a gun in violation of 18 USC § 922(g).

manyguns190423Last week, the 4th Circuit reversed his conviction. “While there is no doubt that Ty possessed a firearm,” the 4th said, “we must decide whether he was a felon under federal law. Answering that question is surprisingly difficult. Federal law treats someone as a felon if “convicted” of a crime punishable by more than one year in prison. But what exactly counts as a ‘conviction’? In some cases the answer seems easy — for example, where a federal judge imposes a sentence after a jury has found the defendant guilty. In other cases it is hard; this is one of them.”

The North Carolina judge, after Ty’s guilty plea, imposed a “conditional discharge” as allowed by state law. This meant that without entering a judgment of guilt,” the court “deferred further proceedings and placed the person on probation… for the purpose of allowing the defendant to demonstrate the defendant’s good conduct.” If Ty fulfilled his probation conditions, the guilty plea would be withdrawn and the case dismissed.

Alas, Ty did not fulfill the conditions. Instead, he was caught with some guns, and his probation was violated by North Carolina. But before the conditional discharge could be withdrawn and he could be convicted in the state, the Feds charged him with the § 922(g).

The North Carolina felon-in-possession law defines “conviction” as “a final judgment in any case in which felony punishment, or imprisonment for a term exceeding one year… is authorized, without regard to the plea entered or to the sentence imposed.” Ty’s guilty pla and conditional discharge — as required by statute — was done without entering a judgment of guilt.” And without entry of a judgment, the 4th Circuit said, “and until the anticipated further proceedings” take place, the conditional discharge does not lead to a final judgment.”toughluck180419

So Ty dodged his Federal case. But he still has some ‘splainin’ to do to his North Carolina judge, and the smart money suggests that the state court is going to take the botched federal prosecution into account when it slams old Ty with time in state prison.

United States v. Smith, 2019 U.S. App. LEXIS 29218 (4th Cir. Sept. 27, 2019)

– Thomas L. Root

Wright Was Wrong About Mathis – Update for September 26, 2019

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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 CIRCUIT REFUSES MATHIS CLAIM IN 2241 PETITION

Congress intended that all post-conviction federal conviction and sentence claims be heard only in a § 2255 motion. But 28 USC § 2255(e) contains a “saving clause” that lets a prisoner file a 28 USC § 2241 habeas corpus petition when the § 2255 motion “is inadequate or ineffective to test the legality of his detention.”

wrong190930Prisoner Bill Wright believed that after the Supreme Court decided Mathis v. United States, his predicate Maryland drug conviction was no longer a “serious drug offense” that qualified him for a 15-year Armed Career Criminal Act sentence. He had already filed and lost a § 2255 motion well before Mathis was decided, so he filed a 28 USC § 2241 petition under the § 2255(e) saving clause.

Last week, the 6th Circuit agreed that under post-Mathis analysis, the Maryland conviction did not count toward ACCA, and that Bill should not have been given a 15-year mandatory minimum sentence. But the substance did not matter, because procedurally, Bill was out of luck.

The 6th said that a “prisoner who has already filed a § 2255 motion and cannot file another one cannot access § 2241 just because a new Supreme Court case hints his conviction or sentence may be defective. Rather, the prisoner must also show that binding adverse precedent (or some greater obstacle) left him with no reasonable opportunity to make his argument any earlier, either when he was convicted and appealed or later when he filed a motion for post-conviction relief under § 2255. Otherwise, § 2255 is simply not inadequate or ineffective to test his claim.”

dictum160805In Bill’s case, the Circuit said, there was not a prior 4th Circuit holding that the Maryland drug conviction was or was not a “serious drug offense,” even before Mathis. Only one case had ever considered the Maryland statute, and there the court merely assumed it was a “serious drug offense.” The 6th said that such dictum, something other the actual holding in the case, was not binding precedent. What’s more, Mathis was nothing new. It clarified how to categorize prior convictions, but even the Supreme Court said in the decision that “for more than 25 years, we have repeatedly made clear that application of ACCA involves, and involves only, comparing elements” and “our precedents make this a straightforward case.”

The 6th said Bill did not qualify for the § 2255(e) “saving clause,” no matter how right he was on the merits of his claim.

Wright v. Spaulding, 2019 U.S. App. LEXIS 28325 (Sept. 19, 2019)

– Thomas L. Root

Sisyphus Keeps Pushing – Update for September 25, 2019

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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.

NOTHING HAPPENS FAST – PART 2

Complaining about how long it takes district courts to act on 28 USC § 2241 habeas corpus petitions and 28 USC § 2255 motions is even more common that complaining about BOP’s sloth in updating records. And the complaints are just as effective, which is to say, not very.

delay190925

Most of the people who hang around a prison law library can tell you that habeas corpus is supposed to happen quickly. They cite 28 USC § 2243’s requirement that the judge “shall forthwith award the writ or issue an order directing the respondent to show cause.” And they quote the 1963 Supreme Court decision in Fay v. Noia that habeas corpus is intended to “provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints.”

But what is “prompt and efficacious?” It turns out, the courts define “prompt” in geologic terms. Last week, the 4th Circuit denied a petition for writ of mandamus filed by Mustafa Muhammad.

Mandamus is a wonderful device. A writ of mandamus is an order issued by a court directing an official to take some action which is not discretionary. Or, as in this case, mandamus is an order of a higher court directing a lower court to take such a non-discretionary action. Mandamus cannot direct the lower court to grant or deny a pending action, but it can order the judge to do something.

Mustafa filed his § 2255 motion in 2016. It has been awaiting a district judge’s decision since January 2017. He filed a petition for mandamus with the U.S. Court of Appeals last February, asking that court to order the district court to act one way or the other on his § 2255 motion. The petition apparently convinced the lower court to act, because it finally denied the § 2255 motion two months ago, 34 months after he filed it.

Still, it is troubling that the district court did not act for five months after the mandamus action was filed, and the 4th took a whopping seven months to act on a petition asking it to order that a dilatory lower court finally take action. Oh, the irony.

Last week, the 4th also denied mandamus to Rick Chestnut, a prolific civil action and habeas filer (PACER shows he has filed over three dozen cases in the last five years). Rick filed a § 2241 petition in March, complaining about irregularities in a disciplinary hearing. When he had gotten no response from the district judge by the first week of June, he filed a mandamus petition with the 4th Circuit.

nuclear190925Although the district court has passed six months without even asking the government to answer, the Circuit said, “We find the present record does not reveal undue delay in the district court.” The language is curious, suggesting that there is some kind of delay that is “due.” This seems to be at odds with the 28 USC § 2243 “forthwith” standard, not to mention Fay v. Noia’s “prompt and efficacious” language.

Mandamus has always been the “nuclear option” for people whose post-conviction § 2241s and § 2255s are languishing. I have never favored it, because it is reasonably to anger the very judge who is to be deciding the merits of your case. Mandamus is a filing that is the legal equivalent of tattling on the teacher’s pet to the teacher. It usually irritates the teacher’s pet – who immediately finds out you ratted him or her out – and hardly ever gets favorable results from the teacher.

In re Muhammad, Case No. 19-1210 (4th Cir. Sept. 19, 2019)
In re Chestnut, Case No. 19-1595 (4th Cir. Sept. 20, 2019)

– Thomas L. Root

Sisyphus Had Nothing on Us – Update for September 24, 2019

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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.

NOTHING HAPPENS FAST – PART 1

sisyphus190924Remember that Greek guy who kept rolling the rock up the hill, only to have it roll back down, and then he’d have to do it again? Yeah, that Sisyphus character… Legal combat with the Bureau of Prisons over the agency’s glacial pace in updating sentences to add the additional 7 days-a-year good time credit is something like that.

Last December, the First Step Act amended the wording of 18 USC 3624(b)(1) to correct a Congressional oversight. Congress had always intended that federal inmates get 54 days per year good-conduct credit, but it had written the statute so badly that the BOP was able to interpret 54 days to really mean 47 days. No fooling. The First Step Act was to fix that.

onecar190924But trust Congress to screw up a one-car parade… even the “fix” was messed up. Congress meant that inmates would immediately retroactively receive seven extra days for every year they had served in their sentences, the be only 47. But the statute was unclear, and the BOP took the position that the extra seven days would only be effective on July 19th (180 days after the statute passed).

Even that hasn’t worked. Since July 19th, I have been bombarded with emails from inmates that the BOP has yet to correct their sentences to add the extra seven days per year. The BOP complains that the process is labor-intensive, and it’s moving as fast as it can.

Attempts to address the problem judicially has thus far come to naught. Case in point: Tim Greene, doing a long sentence for bank robbery, was due to be released August 9th. But with the additional 7 days a year, his release date would be moved back to March 29. He filed a habeas corpus petition in the Northern District of Texas last February, arguing that he was due the extra good time right away, and should be released at the end of March.

The District Court dismissed the petition as premature, because July 19th had not yet come around, and Tim appealed. By now, it was early June. He filed his brief, a motion for expedited consideration, and a request for conditional release. But nothing happened fast. The government filed its brief a month later, and Tim replied on July 18. The next day, the BOP kicked him out the door, which is exactly what would have happened had Tim done nothing.

nothing190924Last week, the 5th Circuit finally ruled. It held the BOP was right that the extra goodtime only became effective on July 19, making Tim’s petition premature. Because Tim got out July 19, the requests for expedited consideration and conditional release were dismissed as moot.

There are undoubtedly habeas cases in the pipeline over the BOP’s failure to update release dates by applying the extra goodtime, a failure that messes with release plans and halfway house/home confinement placement. But as Tim’s case – which took seven months start to finish – shows, nothing happens fast.

Greene v. Underwood, 2019 U.S. App. LEXIS 28512 (5th Cir. Sept. 20, 2019)

– Thomas L. Root

President’s Focus on Immigration Reflected in Increased Federal Prosecutions – Update for September 23, 2019

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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.

TRUMP’S FOCUS ON IMMIGRANTS REFLECTED IN NEW SENTENCE DATA

The US Sentencing Commission’s 3rd Quarter Preliminary Fiscal Year 2019 Data, released last week, shows that the Dept. of Justice has responded to President Trump’s preoccupation with illegal immigrants. Immigration cases increased from 34.7% to 37.7% (an increase of almost 9%, for the math-challenged), but drug prosecutions fell 1.2% and fraud cases fell 0.8%. Immigration offenses were only 30.5% of total prosecutions in 2017, meaning that in the last two years, the use of federal criminal law resources to prosecute (and imprison) illegal immigrants has increased by over 22%.

Piechart190923If DOJ’s pace of prosecutions in 2019 continues through the end of the fiscal year next week, federal criminal cases will have increased by about 4.3% over last year. Of course, this assumes that the rate of prosecutions remains the same throughout the year, but if the assumption holds, it is clear that reduction of mass incarceration is a Congressional concern, and not so much one for the Executive Branch.

There is a glimmer of good news, however. The average federal sentence continues to fall, from 44 months in FY 2018 to 43 months in the first three quarters of FY2019. In 2017, half of all defendants received sentences of under 21 months and half received sentences of more than 21 months. So far in FY 2019, half of all defendants got sentences under 18 months, and half got over.

U.S. Sentencing Commission, Quarterly Data Report (Sept. 17, 2019)

– Thomas L. Root

Dope Smokers Knew They Were Drug Users (and Dog Bites Man) – Update for September 18, 2019

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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 CIRCUIT SAYS KNOWING STATUS IN REHAIF IS ENOUGH

A couple of marijuana aficionados (we’ll call ’em Cheech and Chong), were arrested smoking pot in a car with a couple of guns present. They were convicted of being unlawful drug users in possession of a firearm under 18 USC § 922(g)(3).

cheech190918A little-appreciated portion of § 922(g), the so-call felon-in-possession-of-a-firearm statute, is that it does not just prohibit convicted felons from possessing a gun. It also prohibits a laundry list of other people from possessing one as well: wife-beaters, people who are nuts, people who have been slapped with a civil protection order, illegal aliens, people on the lam, people who were thrown out of the Army, and dope-smokers. Really. Read the statute.

Cheech and Chong appealed, and while that appeal was pending, the Supreme Court handed down Rehaif v. United States, which held that a § 922(g) conviction requires that a defendant knows that he is in a class of people prohibited from possessing firearms, and that he knowingly possesses the gun. Cheech and Chong raised Rehaif in the Court of Appeals, arguing the government had not shown they knew they were unlawful users of a controlled substance, and even if they did, the government had not shown they knew they shouldn’t have the gun.

On plain error review, the 6th Circuit affirmed the conviction. The record was full of Cheech’s and Chong’s Facebook posts bragging about “smoking dope wit da demons” and “getting high and drunk da whole day.” The Court of Appeals said, “The jury heard that the defendants were arrested with marijuana, posted pictures of themselves using marijuana, commented about using marijuana, and posted a video of them smoking marijuana… The defendants dispute this evidence, but not on the ground that they were unaware the substance was marijuana, or unaware they were ‘unlawfully’ using it.”

marijuanahell190918But Cheech and Chong argued that even if they knowingly used marijuana, Rehaif required that the Government prove each defendant ‘knew he was prohibited from possession [of a firearm] because he was an unlawful user of a controlled substance’.” The Court admitted, “it is at least plausible that they were unaware that they were prohibited from possessing firearms under a subsection of 18 U.S.C. § 922(g) due to their regular and repeated drug use,” but held that Rehaif “did not graft onto § 922(g) an ignorance-of-the-law defense by which every defendant could escape conviction if he was unaware of this provision of the United States Code.” The Circuit said Rehaif requires that “the Government must prove . . . that a defendant knew he belonged to the relevant category of persons barred from possessing a firearm.”

United States v. Bowens, 2019 U.S. App. LEXIS 27488 (6th Cir. Sept. 12, 2019)

– Thomas L. Root