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

OBJECTING FAST AND FURIOUSLY

Over ten years ago, a couple of Taliban expatriates living in Pakistan joined a plot to drop some missiles into an eastern Afghanistan airfield. They connected with the mastermind, who lived in a dusty village near the Jalalabad target. As sometimes happens in plots, one of the expats, Jaweed, fell out with the other two conspirators, and reported the plan to local police. The Afghan cops turned it over to the U.S. DEA, who convinced Jaweed to go ahead with the plan while wearing a wire.

Hearing recordings of Khan’s plans and his boasts about the attack, the DEA decided to arrest him as soon as Jaweed gave him the missiles. Cooler heads prevailed, suggesting the missiles could unexpectedly do a “Fast and Furious,” and disappear before the arrest was carried out. So the DEA got Jaweed to arrange an opium buy using Khan as a broker. Khan said his commission would be used to buy a car to haul the missiles he expected to get. A heroin buy followed the opium deal, with Jaweed telling Khan all of the dope was going to the U.S. Khan seemed all right with this, saying, “Good, may God turn all the infidels to dead-corpses.”

Suspecting that Kahn might not be fond of the U.S. or its citizens, a federal grand jury in Washington, D.C., indicted Khan for narcoterrorism and distributing drugs to be imported to the U.S. By the end of 2007, Khan found himself locked up in D.C. awaiting trial.

Fast forward furiously a decade: Khan finds himself doing life in the California high desert (must seem like home to him), but his case continues to twist and turn through the courts. Last Friday, the D.C. Circuit, in a remarkable decision that addresses in detail a defense attorney’s duty to investigate and object at trial – even when his client is obstinate, unhelpful and a schmuck – remanded the narcoterrorism charge to the trial court because of his lawyer’s ineffectiveness at trial.

Khan had been to the D.C. Circuit on direct appeal once before, where his sentence and conviction were affirmed, but the case was sent back for an evidentiary hearing on his claim of ineffective assistance of counsel. This time, the Circuit held “the performance of Mohammed’s trial counsel was constitutionally deficient… [because he] failed to investigate the possibility of impeaching the government’s central witness [Jaweed] as biased against Mohammed, despite ample indication that he should and could do so.” While the ineffectiveness did not prejudice the drug trafficking charge, the Circuit said, “as to the narcoterrorism charge, we cannot on this record confidently assess prejudice, and therefore remand to the district court for further proceedings on that issue.”

Defense attorneys sometimes have trouble getting people from across town to show up to testify. So you can sympathize with Khan’s attorney, who two months before trial told district court that he intended to seek witnesses in Afghanistan on Khan’s behalf, but noted that there were “very difficult obstacles in terms of finding witnesses, locating them, and then somehow bringing them to the United States under some type of parole visas.” On the eve of trial, the attorney confirmed that he “did look into … how do you even get [to Afghanistan], and who [from the office] was I going to take,” but there were “no volunteers.” Hard to believe, huh?

Ultimately, Khan’s lawyer conceded that he failed to “follow through” on his previously expressed intent to contact witnesses in Afghanistan. Although the government provided a contact list from Khan’s phone book in discovery, defense counsel never attempted to call any potential witnesses in Afghanistan and, in fact, even mistakenly told the court he “wasn’t given telephone numbers.” Khan told the court he had “asked [counsel] to bring my witnesses,” and specifically identified four witnesses who would say that he was not associated with the Taliban. Counsel admitted this, but apparently thought the only way he could interview the potential witnesses would have been to travel to Afghanistan, which he concluded posed “insurmountable” difficulties.

The problem, simply enough, was far from simple. It turns out that a substantial number of Afghanis hate us. And hate the Russians. And the British. And different tribes. And each other. In Khan’s case, he and Jaweed were from the same village and had known each other for a long time. At one point, Jaweed’s mom asked Khan if he would allow Jaweed to marry Khan’s sister. Khan said no. Khan and Jaweed were later in a lawsuit against each other. Khan beat Jaweed’s cousin in an election. There was, as they say, a lot of bad blood between them.

The government’s case against Khan relied on Jaweed’s recorded undercover conversations with him, and Jaweed’s own testimony, which addressed the meaning of those conversations and, more broadly, the two men’s interactions. Defense counsel called Jaweed’s testimony “the bread and butter of the case.” The government repeatedly asked Jaweed to clarify the meaning of exchanges, and Jaweed obliged some 118 times. It was obvious to anyone that Jaweed’s credibility was crucial to the government’s case.

The Circuit, noting that “complete failure to investigate potential impeachment witnesses cannot be construed as a strategic decision on the part of defense counsel,” found that counsel knew Jaweed’s testimony would be central to the upcoming trial, and even took preliminary steps to understand Jaweed’s background, including asking the government to search for any official criminal records. “But he did not investigate the possibility of Jaweed’s bias, despite knowing about” the election.

The Circuit disagreed with the trial court that counsel had no duty to investigate whether Jaweed was biased against Khan “when the only information he had about this purported bias was the election.” The appellate panel said, “Any information about potential sources of bias in a witness as crucial as Jaweed should have led to further investigation… The district court appears to have concluded that counsel could not be expected to take investigative steps that Mohammed did not specifically suggest to him. But even when defendants are fatalistic or uncooperative, that does not obviate the need for defense counsel to conduct some sort of … investigation. Indeed, when defendants are actively obstructive, they remain entitled to effective counsel. Counsel has a duty to investigate, even if his or her client does not divulge relevant information.”

The Court of Appeals also found that defense counsel failed by not objecting to Jaweed’s frequent “interpretations” of his conversations with Khan. The Circuit said

a proficient attorney would have promptly objected and, once it became clear the government would repeatedly solicit Jaweed’s testimony about Mohammed’s state of mind, lodged a standing objection. Had Jaweed’s entire testimony been confined to what Jaweed understood, not what Mohammed meant—as the district court ultimately suggested it should be —the jury likely would have better appreciated the limitations of that testimony. Had Mohammed’s counsel also independently sown doubt as to Jaweed’s credibility, the subtle distinction between Jaweed’s actual testimony (about Mohammed’s state of mind) and testimony to which Jaweed should have been confined (about what he understood Mohammed to mean) could have been significant. Thus, the failure to object to Jaweed’s interpretations should be considered part and parcel of counsel’s failure generally to undermine Jaweed’s testimony.

The Circuit noted that the prejudice question hinged on whether Kahn “has shown a reasonable probability that adequate investigation would have enabled trial counsel to sow sufficient doubt about Jaweed’s credibility to sway even one juror.” The recordings about drugs spoke for themselves, the court said, but because Jaweed’s spinning of the equivocal statements on the recordings was the only evidence of narcoterrorism, the case was remanded for the district court to try to figure out what defense counsel would have uncovered in 2008 had he only looked for it.

United States v. Mohammed, Case No. 16-3102 (D.C. Cir., July 21, 2017)

– Thomas L. Root

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

APPEALS COURT EXPLAINS THAT 420-60=420

We write a lot about cases in which defendants win the right to resentencing due to some error in calculation or procedure the first time around. In case readers ever wonder how that turns out for defendants, we present the case of German De Jesus Ventura, a/k/a Chino, a/k/a Chalo, a/k/a Pancho, a/k/a Chaco, a/k/a Oscar, and other names not mentioned in the decision.

Mr. Ventura (we’ll call him “AKA” for short) ran several brothels on the Eastern Shore of Maryland. He employed the usual brothel operations techniques, importing young ladies from D.C. and Virginia to work, splitting revenues with his workers 50/50, threatening and beating up underperforming prostitutes, and – of course – carrying business cards promoting his whorehouses.

It was this last practice that contributed to his undoing, when one of the cards came to police attention during a routine traffic stop. When the dust settled, AKA got 420 months for a variety of prostitution-related crimes, a sentence made up of 360 months on most of the Mann Act counts, and a mandatory 60 months extra for carrying a gun during a crime of violence (a violation of 18 USC 924(c)).

On his first trip to the 4th Circuit Court of Appeals, AKA got the 924(c) count thrown out, because, the court ruled, the underlying crimes could be committed without the use of violence (by fraud, for example). His case was sent back to the district court for resentencing without the 924(c) count’s mandatory 60-month add-on. But to AKA’s consternation, the district court gave him the same 420-month sentence. Not believing that 420 months minus 60 months could still equal 420 months, AKA appealed.

Earlier this week, the 4th Circuit took AKA to school, explaining that 420 minus 60 can still equal 420. Interesting for its treatment of sentencing vindictiveness and the sentencing packaging doctrine, the decision is especially noteworthy for illustrating the obverse of the Dean v. United States coin.

AKA’s case addresses a question we get a lot from defendants: if I win my appeal or post-conviction motion, and get sent back for resentencing, can the judge give me more time than I started with? There’s an answer, and it’s a complicated mix of the constitutional prohibition on vindictiveness and the sentencing package doctrine.

Fifth Amendment due process requires that vindictiveness against a defendant for having successfully attacked a conviction or sentence can play no part in the sentence he or she gets after a new trial or sentencing. If a trial court increases a sentence on remand, the reasons for the increase must be put in the record. If the trial court does not explain its reasons, a presumption arises that a greater sentence has been imposed for a vindictive purpose — “a presumption that must be rebutted by objective information . . . justifying the increased sentence.” But the presumption only arises if there’s a reasonable likelihood the increase in sentence is the product of actual vindictiveness.

The sentencing package doctrine holds that if a case is remanded for resentencing, the sentencing court may refashion the entire sentencing package, not just the count or counts left after one or more are thrown out. So if a drug case where there’s a conspiracy counts, four possession-with-intent-to-distribute counts, and a 924(c) count gets remanded after two possession counts are thrown out, the trial court may still look at the whole package of conduct and decide its original 180-month sentence was a reasonable sentence for what the defendant did, and reimpose it.

AKA argued that the 4th Circuit’s decision throwing out his 924(c) conviction had to be followed by the trial court, and that his sentence necessarily had to be 60 months less to avoid violating the “mandate rule” (which holds, logically enough, that when a higher court issues a mandate, a lower court generally is “bound to carry the mandate of the upper court into execution,” as the Circuit put it). But the 4th held AKA’s trial court had not defied its mandate, but rather just employed the “sentencing package doctrine.”

The Circuit said that when a defendant is found guilty on a multicount indictment, a district court may craft a disposition in which the sentences on the various counts form part of an overall plan:

If some counts are vacated, the judge should be free to review the efficacy of what remains in light of the original plan… Our remand did not — as Ventura suggests — automatically entitle him to a 60-month reduction in his aggregate sentence merely because his conviction on Count Seven was vacated. Pursuant to the sentencing package doctrine, the mandate left ample room for the district court to recalculate the sentences related to Ventura’s other six convictions that were not subject to vacatur.

AKA argued, however, that the district court was vindictive in resentencing him to the same 420 months, even without the gun, because to do so, the trial judge increased the sentence on the Mann Act counts from 360 months to 420 months.

The 4th Circuit made short work of this argument, rejecting it because AKA “did not receive an increase in his aggregate sentence. The appellate panel said that to determine whether the new sentence is vindictive, “we first ask whether the new sentence is actually harsher than that imposed prior to successful appeal.” Only then will the court consider whether the defendant has shown a reasonable likelihood of actual vindictiveness.

Here, the district court initially sentenced AKA to an aggregate 420 months. On remand, the court resentenced him yet again to an aggregate 420 months. “Put simply,” the Circuit said, “the court did not increase his aggregate term of imprisonment. — it imposed the same term.” In other words, 420 is not greater than 420.

This case shows the dark side of Dean v. United States, last April’s Supreme Court decision that held judges could consider the effect of a mandatory consecutive sentence in setting the sentence on the underlying count. In Dean, the court had to sentence the defendant to a consecutive 360 months for successive 924(c) counts. The Supremes said the trial court could sentence him on the underlying drug count to one day, even though the Guidelines were 78-87 months, in order to fashion a sentence package that the judge saw as reasonable.

The 4th Circuit did not mention Dean in turning down AKA, but it could have. Given that a district judge can do that, nothing stops him from raising the time on the underlying count once the 924(c) count goes away. What’s sauce for the goose is sauce for the gander.

United States v. Ventura, Case No. 15-4808 (4th Cir., July 18, 2017)

– Thomas L. Root