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Lies, Damn Lies & Statistics: the AG Speaks – Update for June 21, 2017

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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.

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ATTORNEY GENERAL COMMITS FELONY ‘STATICIDE’
Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III

A little more than a week ago, Attorney General Jefferson Beauregard Sessions III took to the pages of the Washington Post to defend his May 10th tough-on-crime memorandum.  The reviews are in, and they are not pretty.

In 2013, former Attorney General Eric Holder ordered federal prosecutors to decline to pursue mandatory minimum sentences for drug offenders who didn’t use violence, were not leaders or organizers of the drug operation of which they were a part, had no ties to large-scale drug operations or gangs, and had no significant criminal history. If the drug defendant rang all of those bells, Holder directed that “prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence.”

As for sentencing, Mr. Holder directed that prosecutors be “candid with the court, probation, and the public as to the full extent of the defendant’s culpability, including the quantity of drugs involved in the offense and the quantity attributable to the defendant’s role in the offense, even if the charging document lacks such specificity. Prosecutors also should continue to accurately calculate the sentencing range under the United States Sentencing Guidelines. In cases where the properly calculated guideline range meets or exceeds the mandatory minimum, prosecutors should consider whether a below-guidelines sentence is sufficient to satisfy the purposes of sentencing as set forth in 18 U.S.C. § 3553(a).”

Now look at how Mr. Sessions interprets those passages:

“In 2013, subject to limited exceptions, the Justice Department ordered federal prosecutors not to include in charging documents the amount of drugs being dealt when the actual amount was large enough to trigger a mandatory minimum sentence. Prosecutors were required to leave out objective facts in order to achieve sentences lighter than required by law. This was billed as an effort to curb mass incarceration of low-level offenders, but in reality it covered offenders apprehended with large quantities of dangerous drugs. The result was that federal drug prosecutions went down dramatically — from 2011 to 2016, federal prosecutions fell by 23 percent. Meanwhile, the average sentence length for a convicted federal drug offender decreased 18 percent from 2009 to 2016.”

Ah, where to start?

violence160110How about with Mr. Session’s implication that the 2013 Holder memorandum led to an increase in violent crime? Is that so? Well, just as Bill Clinton famously said that it depends of what the meaning of ‘is’ is,” the first question has to be that it depends on the meaning of “violent crime.”

Mr. Sessions says that drug trafficking is “violent crime.” But the FBI does not. The G-men (and -women) issued the violent crime statistics that Mr. Sessions says show an uptick in violent crime in 2015 (back to 2012 levels) The AG’s right about that much, but among the mayhem included in the FBI’s definition of “violent crime” – murder, rape, robbery and aggravated assault – you won’t find drug trafficking. So the Holder memorandum – which primarily addressed drug trafficking – did not lighten up on the kind of “violent crime” that Mr. Sessions cited in the statistic.

Sure, you say, but did not he argue that drug trafficking led to such violent crime, citing the need to use a gun to collect drug debts because the courts were closed to people trading in illegal commodities? He did do so, but if you want to be completely fair, possession of a gun is just as important to a gang shootout over drug debts as is the debt itself. So consider this:

  • In 2014, the first full year the Holder memorandum was in effect, the average drug sentence was 57 months. This means that someone beginning that average sentence on January 1 would not be released until about January 1, 2018. In other words, shorter sentences beginning in 2014 could not account for an increase of violent crime in 2015.
  • While we’re at it, note that Mr. Sessions blames the 2013 Holder memorandum for the fact “that federal drug prosecutions went down dramatically — from 2011 to 2016, federal prosecutions fell by 23 percent. Meanwhile, the average sentence length for a convicted federal drug offender decreased 18 percent from 2009to 2016.”
§ 924 tacks a few years onto a sentence for carrying a gun during a violent or drug crime.
The statistics say the Feds are already doing more to get guns off the streets.

It’s pretty basic science to observe that when you’re measuring the effect of a certain event, you measure the change that occurred after the event, not the change that occurred before and after the event.

Several commentators have pointed to other logical legerdemain Mr. Sessions employed in his screed. Jacob Sullum at Reason.com noted that

The violence associated with the distribution of currently banned drugs does not demonstrate that the business is inherently violent, any more than the violence associated with liquor distribution during alcohol prohibition showed that selling whiskey is inherently violent. The violence is a product of the prohibition policy that Sessions avidly supports, as he himself implicitly concedes in the next two sentences.

“If you want to collect a drug debt,” Sessions writes, “you can’t, and don’t, file a lawsuit in court. You collect it by the barrel of a gun.” And why is it, exactly, that drug dealers cannot avail themselves of the same legal, peaceful methods of dispute resolution that today’s alcohol merchants routinely use? Only because their business remains illegal, malum prohibitum, just as the booze business was from 1920 to 1933.

Radley Balko at the Washington Post notes that “if pot retailers in Colorado, Washington and the other legalization states need to collect on a debt today, they do what any other retailer does. They use the legal system. If Sessions had his way, pot dealers in these states would to back to collecting debts ‘by the barrel of a gun’.” So the answer to this lessening of violence is to shut down legal marijuana sales, firing up the black market once again?

drugdealer160922Mr. Sessions’ answer to that is that even legal, the sales of marijuana is a “deadly business” because of the “approximately 52,000 Americans who died of a drug overdose in 2015.” But as Mr. Balko points out, “about 18,000 of those deaths  involved prescription opioids, which are legally available. About 8,000 involved benzodiazepines, which are also available legally. Both of those types of drugs are made by pharmaceutical companies, prescribed by doctors and sold by pharmacies. Does Sessions believe those are all inherently violent industries? The Journal of the American Medical Association estimates that 88,000 people die each year from alcohol-related deaths. Does Sessions believe that Anheuser-Busch, Diageo and E & J Gallo run “deadly businesses”? What about the 480,000 people who die each year from smoking? Is tobacco a “deadly business”?”

About 125 years ago, Benjamin Disraeli is said to have observed that “there are three kinds of lies: lies, damned lies, and statistics.” Mr. Sessions’ Washington Post defense of his get-tough-on-crime memo scores a hat trick.

Washington Post, Here are all the ways Jeff Sessions is wrong about drug sentencing (June 20, 2017)

Reason.com, Read Jeff Sessions’ Utterly Illogical Defense of Tough Drug Sentences (June 20, 2017) 

Human Rights Watch, Q & A: US Attorney General Jeff Sessions’ Policy Change on Sentencing (June 20, 2017)

– Thomas L. Root

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Supreme Court Strikes Down Internet Restrictions for Sex Offenders as Too Broad – Update for June 20, 2017

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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.

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SEX OFFENDERS NOW FREE TO WASTE TIME ON FACEBOOK

There may be nothing easier for a legislator than to enact laws that punish and restrict people convicted of sex offenses. Who’s going to complain? The sex offenders? Well, sure, but who cares what they think?

Some types of offenses are just too offensive. Today, it's kiddie porn... tomorrow, it may be jaywalking. That's why we have laws, to save us from the Flavor of the Day.
Some types of offenses are just too offensive. Today, it’s kiddie porn… tomorrow, it may be jaywalking. That’s why we have laws, to save us from the Flavor of the Day.

It turns out that the Supreme Court cares. North Carolina wanted to be sure sex offenders lacked access to “vulnerable victims,” that is, kids. So far, so good. States may “enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime,” as the Court put it yesterday. But North Carolina – as legislatures are wont to do – went too far.

The Tarheel State passed a law that prevented anyone on the sex offender registry from using any Internet site that permitted minors to have accounts. Offenders like Lester Packingham, who at age 21 had sex with a 13-year-old girl. Packingham got into hot water with the law again in 2010, when he beat a traffic ticket, and took to Facebook to thank God for his triumph. A police officer saw his post, and saw to it that Lester was convicted of a felony for using Facebook.

files170620We confess that we can think of any number of people who should be convicted of felonies for what they post on Facebook, but the North Carolina statute seemed to be killing flies with a sledgehammer. Lester did, too, and took his lament to the Supreme Court. Yesterday, the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech.

Justice Kennedy, in his usual sweeping style, wrote for a unanimous court that the North Carolina statute went too far, , because it stifles “lawful speech as the means to suppress unlawful speech.” By barring sex offenders from using social-networking sites, he argued, the state “with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” “In sum,” Kennedy concluded, “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”

Justice Kennedy wrote,

Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers ‘relatively unlimited, low-cost capacity for communication of all kinds,’ to users engaged in a wide array of protected First Amendment activity on any number of diverse topics. The Internet’s forces and directions are so new, so protean, and so far-reaching that courts must be conscious that what they say today may be obsolete tomorrow. Here, in one of the first cases the Court has taken to address the relationship between the First Amendment and the modern Internet, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.

The Justice took a direct swipe at legislators who think that no restriction is too harsh where sex offenders are concerned: “Like other inventions heralded as advances in human progress, the Internet and social media will be exploited by the criminal mind. It is also clear that sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people, and that a legislature may pass valid laws to protect children and other sexual assault victims. However, the assertion of a valid governmental interest cannot, in every context, be insulated from all constitutional protections.”

facebook170620Justice Samuel Alito, in a concurring opinion that was joined by Chief Justice John Roberts and Justice Clarence Thomas, agreed with Kennedy – to a point. Justice Alito acknowledged that states have an interest in protecting children from abuse, writing that  “it is legitimate and entirely reasonable for States to try to stop abuse from occurring before it happens.” But, he noted, the North Carolina law under which Packingham was convicted must ultimately be deemed unconstitutional because it also bars sex offenders from gaining access to “a large number of websites” – including, but not limited to, Amazon, The Washington Post, and WebMD – “that are most unlikely to facilitate the commission of a sex crime against a child.”

felonies170620Having said that, however, Alito disputed any suggestion that cyberspace is “the 21st century equivalent of public streets and parks” over which states had “little ability to restrict the sites that may be visited by even the most dangerous sex offenders.” Arguing that “there are important differences between cyberspace and the physical world,” Alito disapproved of what he described as Kennedy’s “loose rhetoric” and “undisciplined dicta” in the majority opinion.

The opinion will provide considerable support to federal prisoners whose terms of supervised release contain sweeping limitations on Internet access.

The Supreme Court has 12 cases yet to decide before the end of next week, including

• Sessions v. Dimaya (formerly Lynch v. Dimaya) (does Johnson apply to 18 USC 16(b)?)

• Lee v. United States (ineffective assistance of counsel);

• Turner v. United States (Brady evidence case);

• Weaver v. Massachusetts (ineffective assistance of counsel);

• Maslenjak v. US (loss of citizenship over immaterial false statement); and

• Davila v. Davis (does ineffective assistance of habeas counsel overcome defaulted ineffective assistance of appellate counsel claims?)

The Supreme Court will issue more opinions on Thursday, June 22, 2017

Packingham v. North Carolina, Case No. 15-1194, reversed 8-0, 3 concurrences

– Thomas L. Root

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Monday Morning Cleanup – Update for June 19, 2017

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ROUGH WEEK FOR THE BOP

badpr170619If you’re handling public relations for the BOP, last week would have been a good time to be out of the office. First, the media reported on a newly-filed class action suit in the Middle District of Pennsylvania alleging that mental health services at USP Lewisburg are so meager that 5-minute therapy sessions take place in the shower and suicidal inmates are treated by being given crossword puzzles.

The suit focuses on the Lewisburg Special Management Unit, where most inmates are locked down in solitary, and often are doubled up in the cells, which psychologists allege is even more harmful than single-celled solitary confinement. Inmates who refuse “double-celling” have been put into metal restraints until they complied.

Lewisburg has an assault rate six times higher than the BOP average.

The inmate class in the suit is represented by the Pennsylvania Institutional Law Project, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and multinational law firm Latham & Watkins.

If that were not enough, a Huffington Post writer blasted the BOP’s Communications Management Units in an article published last Tuesday, highlighting a case still pending in the District of Columbia District Court.

GAG170619The author, who did a 25-year bit for drug trafficking and was sent to the CMU at one point, alleges the BOP uses CMUs – intended to provide an environment that enables staff to more effectively monitor communication between inmates in CMUs and persons in the community – are being used in violation of the 1st Amendment to stifle inmate criticism of the BOP. He says the “Little Gitmos” ― a term the press coined for CMUs ― were opened in 2006, drawing a torrent of criticism. Called the “black ops unit” or “where they keep the terrorists” by prisoners, the BOP’s program statement says the purpose of the CMUs is “to ensure safety and to protect the public.”

The 2014 lawsuit argues that prisoners don’t know why they’re transferred to these units or how they can get transferred back out. With no access to records on who’s housed in them or the reasoning behind these detainments, an inmate confined in a CMU is at the BOP’s mercy. Restricted to one six-page letter per week, three 15-minute phone calls and four 1-hour visits a month, CMU residents have little or no contact from the outside world.

“They’re really there as a punishment to keep them quiet and that’s extremely concerning,” said Amy Fettig, deputy director of the ACLU’s National Prison Project. The purpose of the CMUs, she says, have been twisted to censor anyone who disagrees with prison authorities.

The lawsuit was thrown out by the district court on summary judgment, but reinstated by the D.C. Circuit in 2016. Cross motions for summary judgment are currently pending in D.C. District Court.

The Marshall Project, Where Crossword Puzzles Count as Counseling (June 12, 2017)

Huffington Post, How The BOP Uses CMUs To Silence Prison Writers (June 13, 2017)

Aref v. Lynch, 833 F.3d 242 (D.C. Cir. 2016).

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WHILE WASHINGTON IS FOCUSED ON TRUMP-RUSSIA INVESTIGATION, LITTLE IS HAPPENING ON SENTENCING REFORM

We reported a month ago that a bipartisan sentencing bill, the Justice Safety Valve Act, was introduced in the Senate (S. 1127) and the House of Representatives (H.R. 2435). The Senate bill was sent to the Senate Judiciary Committee the same day it was filed, where it languishes. Last week, the House measure was passed by the House Judiciary Committee to a subcommittee, where the real work on the bill will be done.

Sentencing reform supporters were encouraged last March when Jared Kushner, President Trump’s son-in-law and close advisor, met to talk reform with Senators Grassley (R-Iowa), Durbin (D-Illinois), and Lee (R-Utah). Observers predicted Kushner was sympathetic to reform because his dad did a stint in federal prison, but Senate aides say Kushner’s visit was more a listening session than an offer of support. Still, Sen. Grassley enthusiastically said he would know the administration’s position on reform legislation “in three weeks.”

Over two months later, no one has yet heard from the White House, and Kushner has a pretty full plate (such as peace in the Middle East and a subject of the Russia-Trump investigation). An Atlantic magazine report last week said of Kushner that “it seems unlikely he’ll have much bandwidth in the coming months to weigh in on Congress’s mundane domestic squabbles. Which is why advocates of criminal-justice reform might want to take a moment to wave adios to any prospect of action in the foreseeable future…”

Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III

Meanwhile, Attorney General Jefferson Beauregard Sessions III took to the pages of the Washington Post last Saturday to defend his new “get-tough-on-crime” policies. He led with the claim that “drug trafficking is an inherently violent business. If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court. You collect it by the barrel of a gun. For the approximately 52,000 Americans who died of a drug overdose in 2015, drug trafficking was a deadly business.”

Sessions sees all federal drug defendants as kingpins. He wrote, “Federal drug offenders include major drug traffickers, gang members, importers, manufacturers and international drug cartel members… The truth is that while the federal government softened its approach to drug enforcement, drug abuse and violent crime surged. The availability of dangerous drugs is up, the price has dropped and the purity is at dangerously high levels. Overdose deaths from opioids have nearly tripled since 2002. Overdose deaths involving synthetic opioids rose an astonishing 73 percent in 2015.”

The Atlantic, Criminal-Justice Reformers Pin Their Hopes on Jared Kushner (June 11, 2017)

Washington Post, Jeff Sessions: Being soft on sentencing means more violent crime. It’s time to get tough again (June 17, 2017)

– Thomas L. Root

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Once You Say It, You Own It – Update for June 15, 2017

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MEAN WHAT YOU SAY

changeofplea170616Anyone spectator who has ever endured a change-of-plea hearing in Federal court has some sense of what the prophet Isaiah meant when he wrote of inhabiting eternity. The hearing drones on and on, with discussions about the defendant’s mental state, understanding of his or her rights, the nature of the rights being given up by the guilty plea, the elements of the charges, maximum and minimum sentences, fines and restitution, effect of the Guidelines, and on and on.

The whole back-and-forth between the defendant and the judge – known as the plea colloquy – is scripted by F.R.Crim.P. 11, which covers in detail what has to happen during the guilty plea. Such hearings go on over 70,000 times a year in federal court, and virtually every one of them is mind-numbing.

Before accepting a plea of guilty, the court must determine that the plea is voluntary and did not result from force, threats, or promises other than those in the plea agreement. One question that is almost always asked is whether the defendant is fully satisfied with his or her legal counsel, the representation, and advice received. Another is whether anyone had  threatened or attempted in any way to force the defendant to plead guilty.

ecoli170616At first blush, the questions seem silly. If the defendant is being forced to plead guilty, he or she is hardly going to screw the pooch by telling the judge that. Even worse is the question about satisfaction with counsel. The defendant has not even had his or her guilty plea accepted, let alone get sentenced. It’s as though Yelp required you to post your restaurant review before your appetizer arrives. Sure, the maître d’ was polite, and the tablecloths clean and starched. But you may well feel much different at 3 o’clock tomorrow morning, when you discover that e.coli. had been living in the house salad.

meanit170616As meaningless as the answers may be, they nevertheless because granite-hard truth if the defendant ever suffers buyer’s remorse. Consider Kevin Reed. Halfway through his federal fraud trial, he decided to plead guilty. During the plea colloquy, the district judge asked Kevin if he was “fully satisfied with the counsel, representation, and advice” he had been given. Kevin replied, “Yes.  He’s  excellent.”  He  also  confirmed  that  no  one  had  threatened him or attempted “in any way” to force him to plead, and that he was pleading guilty of his “own free will” because he was actually guilty.

A few months later, as sentencing loomed, Kevin hired a new set of lawyers. They moved to withdraw the plea, arguing that Kevin’s trial attorney’s ineffective representation at trial left Kevin with no choice but to bail out, and thus coerced him to plead guilty. The district court denied the motion.

Last Tuesday, the 7th Circuit upheld the district court. The Circuit acknowledged that a defendant could withdraw a guilty plea, but such a motion is “particularly unlikely to have merit if it seeks to dispute the defendant’s sworn assurances to the court.”

That was exactly what Kevin was trying to do. He argued that his trial attorney ignored tens of thousands of documents and didn’t interview dozens of potential witnesses, but he did not identify any of the witnesses or documents or show how they would have bolstered his case. More importantly, the appellate panel tartly noted, Kevin kind of forgot to mention any of this in his plea colloquy, or to complain that he was answering “yes” to the court only because his attorney told him to.

trifles170616At the plea colloquy, Kevin said his lawyer was excellent and that his plea was voluntary. “Those sworn statements were not ‘trifles’,” the 7th said, that Kevin could simply “elect to disregard.” To be sure, a plea entered because counsel is unprepared for trial would be an involuntary plea, but the district court found Kevin’s claim of lawyer ineffectiveness “vague,” and the appellate court agreed.

The problem is that at the change-of-plea colloquy, a defendant – especially one unfamiliar with the criminal process – has no way to know whether his lawyer has provided good representation or not. Nevertheless, a defendant will be held to the words he or she speaks. Whether the defendant knows the correct answer or not, that answer is going to bind him or her. Say it like you mean it, because once you give the answer, you own it.

United States v. Reed, Case No. 16-3428 (7th Cir., June 13, 2017)

– Thomas L. RootLISAStatHeader2small

The Fine 6th Amendment Line Between Arguing the Law and Arguing the Facts – Update for June 14, 2017

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JURY INSTRUCTION VIOLATES 6TH AMENDMENT

Everyone who has ever watched a cop show knows that the Constitution guarantees an attorney to each accused. Actually, the 6th Amendment – from which the right is derived – guarantees a lot more than the presence of a mouthpiece.

The 6th Amendment guarantees the right to an attorney of the accused’s choice, the right to an attorney who is effective at what he’s or she’s doing, and – as we see today – the right to mount a defense.

sixth170614Dan Brown was a member of an online bulletin board known as Dark Moon, where members shared child porn. A jury convicted Dan of conspiracy to make, print, or publish “any notice or advertisement seeking or offering” child pornography in violation of 18 USC § 2251(d) and (e). Dan got 15 years.

Dan’s lawyer wanted to argue that because Dark Moon was a closed group which no one could access without a password, the postings were not the kinds of a “notice or advertisement” that the statute outlawed. He argued that the closed nature of the board was one factual consideration that the jury should be permitted to consider in determining “whether the government meets the proof beyond a reasonable doubt.”

The district court disagreed, concluding that the postings were advertisements, and told the jury as much in the instructions the judge read to the jury. The district court explained, “I just think clearly that when you have a site like the Dmoon bulletin board where you are making available, to anybody that wants to get into this particular bulletin board, the services that are being offered in that bulletin board in the manner as it has been demonstrated through the evidence in this case, that… to me… meets the definition of what would be ‘advertisement,’ ‘advertise,’ or ‘notice.’”

On Monday, the 9th Circuit reversed, and sent the case back for retrial. The appellate panel conceded that a district court may prevent a defendant from “arguing incorrect statements of law, something that is well within the court’s discretion.” But that’s not what happened here. Instead, “the district court effectively ruled that, as a matter of law, the closed nature of the Dark Moon bulletin board was irrelevant to the question of whether an ‘advertisement’ or a ‘notice’ had been shown, and thus could not properly be considered by the jury… Indeed, the trial judge’s remarks suggest that he foreclosed Brown’s argument in part because he concluded that the government had met its burden as to that element of the statute. Because that determination was the jury’s to make, we conclude that it was error for the district court to prevent Brown from arguing that the government failed to meet its burden.”

advocacy170614The 9th differentiated between sufficiency and what happened here.

The question… is not whether the evidence against Brown was sufficient to support a conviction. Were that the question before us, we would ask whether, ‘viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Instead, the question is whether the defense had a fair chance to argue the evidence in the first place. There is a wide gulf between saying that evidence is sufficient to convict, and saying that such evidence is always sufficient as a matter of law to convict.

The Court observed that if Dan’s lawyer had wanted to argue that Dan’s posts could not qualify as “advertisements” or “notice” because he had posted on a closed board, the argument would have been a misstatement of law, and the judge could have prevented it. But what Dan’s lawyer wanted to argue to the jury was that “in this particular case ‘the features of the board don’t meet the… common and contemporary definition of ‘notice’ and ‘advertisement’” because the board was closed, because it was password-protected, because the rules of the forum required that files be encrypted, and because it had relatively few participants. Arguing to the jury that the facts did not bring Dan’s conduct within the limits of the statute is, after all, what lawyers are supposed to do.

pound170614The Circuit concluded that “no matter how strong the case for the prosecution may appear to the presiding judge, Brown had the right to present a defense that was not precluded as a matter of law… By refusing to allow Brown to present his defense in closing argument based on the closed nature of the Dark Moon bulletin board, the district court violated Brown’s fundamental right to assistance of counsel and right to present a defense, and it relieved the prosecution of its burden to prove its case beyond a reasonable doubt.”

United States v. Brown, Case No. 15-30148 (9th Cir., June 12, 2017)

– Thomas L. Root

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Sunday Morning Comin’ Down – Update for June 13, 2017

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TRYING THE HAIL MARY

A long time ago in an office far away, Sunday Williams, a Nigerian citizen by birth, tried to get a passport. His intent was praiseworthy but his technique was not. Dismissing legalities as too time consuming, Sunday submitted a false application claiming that he was an American citizen. After all, there are over 300 million of them. Who could possibly find out he wasn’t on the list?

sundaycash170613The Feds, that’s who. Sunday was charged with making passport fraud in violation of 18 USC § 1542. The case suffered from a venue problem: he was charged in New Hampshire but the fraud was committed in New York. His lawyer could see the handwriting on the wall – the government would dismiss in New Hampshire and bring the case in the Eastern District of New York – so he worked out a deal where Sunday pled guilty to making a false statement to the government in violation of 18 USC § 1001. Sunday could plead to that in New Hampshire. He did, and got probation.

sundayspanky170613Now, a decade after his probation ended, Sunday will never be the same. He feels remorse eight days a week, because his conviction is keeping him from becoming a citizen for real. This is what’s known as a “collateral consequence” of the conviction. The number of such collateral consequences to a felony conviction – which are effects flowing from a felony conviction that last long after the sentence has been served – is large.

Sunday believed that his lawyer misled him about the immigration consequences of pleading guilty to the § 1001 charge, as well as foolishly let him admit that the false statement was in connection to a passport application. He wanted to withdraw his guilty plea due to his lawyer’s alleged mistakes.

sundayholliday170613Ah, gloomy Sunday. To file a post-conviction habeas corpus motion, he had to be “in custody,” that is, serving his probation. What he needed was a way to raise his objections to the conviction years after the fact. To do that requires an old common law device known as a writ of error coram nobis – a remedy of last resort for the correction of fundamental errors of fact or law – to enable him to revise the factual basis of his § 1001 conviction.

The term “coram nobis” is Latin for “before us” and the meaning of its full name, quae coram nobis resident, is “which [things] remain in our presence” Such a writ obviously cannot remedy the direct consequences of the conviction, the sentence, because he had already served that. Sunday hoped, however it could remedy the collateral consequences he still was suffering. Because the underlying facts of his guilty plea involved a false claim of United States citizenship, Sunday was ineligible to receive a visa or to be admitted to the United States under 8 USC § 1182(a)(6)(C)(ii). No waiver or exception is available. 

Sunday’s argument is not important, being as it is kind of plain vanilla attorney ineffectiveness. Rather, what is interesting is the use of the writ of error coram nobis. In its modern form, the writ is ordinarily available only to a criminal defendant who is no longer in custody. The movant must explain his failure to seek relief earlier through other means, must show that he continues to suffer a significant collateral consequence from the judgment being challenged, and must demonstrate that issuance of the writ will eliminate this consequence. After the movant has done all of that, then he must show that the judgment resulted from a fundamental error.

Even after the movant has jumped through all of those hoops, a court retains discretion to grant or deny the writ. As the 1st Circuit put it in the decision handed down last week, “the Supreme Court has always envisioned coram nobis as strong medicine, not profligately to be dispensed, so we must issue this writ under circumstances compelling such action to achieve justice.”

lazy170613Here, the Court concluded that Sunday had proven collateral consequences still dogged him, and it assumed without reaching the question that lazy Sunday could show why he had not sought relief before (such as in a 28 USC 2255 motion while he was on probation). The problem, the Court said, was that he could not show that his lawyer’s decisions were wrong, let alone ineffective. Clearly, the Court said, the government intended to re-indict Sunday if a deal solving the venue problem was not struck. Making a plea deal to a § 1001 violation that avoided prison was not a bad deal at all. And as for the admission that the false statement was on a passport application, that was the factual basis for the § 1001 conviction, so Sunday could hardly avoid copping to it. Not only was counsel not ineffective, but – even if he had been – Sunday was not prejudiced.

hailmary170613A coram nobis has always been a long-shot pleading. The Circuit said, “A Hail Mary pass in American football is a long forward pass made in desperation at the end of a game, with only a small chance of success. The writ of error coram nobis is its criminal-law equivalent.”

So, what’s next, Sunday? Given the current Administration, probably deportation.

Williams v. United States, Case No. 16-2147 (1st Circuit, June 8, 2017)

– Thomas L. Root

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Administration Sees Increase in Federal Inmate Numbers – Update for June 12, 2017

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A WEEK’S WORTH OF FEDERAL PRISONER NEWS

The BOP will “welcome” an additional 4,171 inmates next year, with federal prison population estimated to reach 191,493 as the Dept. of Justice steps up prosecutions of illegal immigrants and drug offenders. This reverses the trend toward fewer inmates started by Obama.

The 2% estimate for fiscal 2018 was noted in a corner of a DOJ budget proposal released two weeks ago.

prison160523The prison budget increase will probably go mostly to private prison companies, which are stepping up lobbying efforts to win contracts to house thousands of new inmates and immigrant detainees. About 19% of federal inmates are currently in private prisons or re-entry centers, a proportion analysts say will increase because private prisons have more beds available than federal facilities. The BOP is currently running 14% above official capacity.

Last week, the Sentencing Commission released current statistics on the BOP population. It reported that

•    46% of all drug trafficking offenders were convicted of a drug offense carrying a mandatory minimum penalty, but fewer than half got the mandatory minimum. About 10% help the government, 10% got the safety valve and 8.3% got both.

•      Only 6.5% of federal inmates have a pre-Booker mandatory guidelines sentence.

•    Half of all inmates in the federal prison population were sentenced to more than ten years in prison, 5% were sentenced to 30 years or longer, and 3% to life in prison.

•      About 11% of all federal inmates have already served more than 10 years.

•   About 56% of all federal inmates were convicted of an offense carrying a mandatory minimum penalty.

mandatory170612Speaking of mandatory minimums, last week Senators Mike Lee (R-Utah), Dick Durbin (D-Illinois), Cory Booker (D-New Jersey), and Rand Paul (R-Kentucky) sent a letter to Attorney General Jefferson Beauregard Sessions III, seeking some answers about the analysis and thought that may have gone into the contents of the DOJ’s May 10, 2017 memorandum, which rescinded Eric Holder’s charging policies and directed federal prosecutors to pursue the most serious offense possible when prosecuting defendants. 

The letter observed that “in many cases, current law requires nonviolent first-time offenders to receive longer sentences than violent criminals. Sentences of this kind not only ‘undermine respect for our legal system,’ but ruin families and have a corrosive effect on communities.”

The letter, seeking a response within 30 days, asks detailed questions about the study done by DOJ leading to adoption of the new policy. Additionally, it asks whether “any federal criminal offenses carrying mandatory minimum sentences that you believe are unfair?” and whether “all applications of 18 U.S.C. § 924(c) result in fair sentences?”

Press Release, Sens. Send Bipartisan Letter Questioning DOJ Sentencing Policy (June 7, 2017)

Wall Street Journal, Federal Prison Population Expected to Grow Under Trump (June 8, 2017)

U.S. Sentencing Commission, Quick Facts: Federal Offenders in Prison – February 2017 (released June 7, 2017)

 – Thomas L. Root

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Hear the Words of Prudence – Update for June 8, 2017

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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.

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JUST THE FACTS, MA’AM

No, Sgt. Joe Friday never really mouthed those precise words, although they succinctly capture the essence of the no-nonsense detective in the long-running series Dragnet.

dragnet170608Sgt. Friday was a man who was careful with the facts, and prudent in what he said. Our President could learn from him. So could today’s defendant, Eduardo Rodriguez.

Eddie pled guilty to conspiring to transport illegal aliens and was sentenced in June 2012. As part of his plea agreement, he agreed to waive his rights to appeal his conviction and sentence as well as his right to seek post-conviction relief.

But waivers are met to be ignored. So in July 2014, Eddie filed a motion for post-conviction relief under 28 USC 2255 complaining that his lawyer had not appealed his conviction and sentence. Sure, 28 USC 2255(f) requires that such motions be filed within a year of the case becoming final, a retroactive change in the law, or discovering new evidence. But Eddie covered that, claiming he did not find out his lawyer failed to file the appeal in July 2012 until October 2013.

The district court denied the 2255 motion as being untimely. On Monday, the 5th Circuit agreed.

A 2255 movant has a year to seek post-conviction relief, running from the latest of four possible dates, one of which is “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” 28 USC 2255(f)(4). For this provision to apply, “a petitioner’s diligence must merely be ‘due’ or ‘reasonable’ under the circumstances.” Diligence can be shown by prompt action by the movant as soon as he is in a position to realize that he should act. In applying 2255(f)(4), the Circuit said, “the important thing is to identify a particular time when… diligence is in order.”

In his appeal, Eddie said that he had specifically instructed his lawyer to perfect an appeal of his sentence, and his lawyer said he would. Eddie said he had exercised diligence in trying to learn whether the appeal had been filed by making “several attempts to reach his counsel to inquire about his appeal,” and sending a letter to the district court requesting certain documents.

diligence170608But the 5th reviewed Eddie’s original 2255 filing in the district court, and noted that Eddie’s story had been a little different when he had first filed. There he said merely that he had “expressed to [his lawyer] his desires to prosecute an appeal,” and that the lawyer replied that “he would come visit to talk about the matter,” which he never did. Back then, Eddie only asserted that he “relied on the fact that he had notified his counsel about his intention to appeal his sentence.” In the 2255 motion, he asked the court to conduct an evidentiary hearing to determine whether he had directed his counsel to appeal.”

The Court of Appeals noted that Eddie had never alleged before the district court that his attorney had agreed to Eddie’s appeal request. Instead, Eddie merely assumed that, “during that period of time… counsel had filed his appeal.” What’s more, Eddie never asserted to the district court that he was diligent in contacting counsel to follow up, just that he had “‘made several attempts to obtain documents’ without specifying from where and from whom.”

Eddie told the district court that it “was not until October of 2013 that petitioner learned about the fact that his Counsel never filed the direct appeal has he instructed him to do so. During that period of time he thought that his counsel had filed his appeal. He tried to obtain these documents but it was… not until July of 2014 that he received the totality of the documents.” The 5th found that only evidence of Eddie “seeking documents” was a single letter he had written to the district court more than a year after the deadline for appealing expired.

prudence160608The appellate court said that even if the facts were as Eddie said they were, he was not diligent. Maybe his lawyer did abandon Eddie, as he said, but “attorney abandonment… does not, by itself, excuse a petitioner from his duty of diligence.” Complete inactivity by a defendant in the face of no communication from his attorney “does not constitute diligence.” Here, the Circuit said, Eddie’s district court allegations show, at most, “only attorney abandonment and not diligence in the face of same.” Eddie’s assumption that his lawyer had filed a notice of appeal, even after he failed to show up for the promised visit with Eddie about the matter, was not diligent. Eddie waited a year and three months after the appeal deadline had passed to write to the district court asking for documents.

The 5th Circuit said, “Diligence under Sec. 2255(f)(4) requires more.”

Eddie was careless and summary in his treatment of the facts in his 2255 motion. By the time he awoke to the particularity of the showing he needed to make, he was on appeal and it was too late to clean up the mess he made.

Rodriguez v. United States, Case No. 15-40357 (5th Circuit, June 5, 2017)

– Thomas L. Root

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The Difference Between a Lawyer and a Rooster – Update for June 7, 2017

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MY LAWYER IS A M*****F*****

There is an old riddle asking the difference between a lawyer and a rooster. The answer, of course, is that a rooster clucks defiance.

screw170607Defendants often complain that their lawyers screwed them. Seldom is there a case where everyone else complains that defense counsel screwed the defendant’s mother… and means that in the most literal sense.

Johnathan DeLaura had a serious problem, having been charged with multiple child pornography counts after being caught in a “sting” that left him on the losing side of a mountain of evidence. Johnathan’s mother, who undoubtedly believed in her son’s innocence, located lawyer Gary Greenwald and made the fee deal: she paid Gary a $25,000 retainer against future work and he began representing Johnathan.

The “horizontal fee” is an infamous legend in the legal profession, if not in the plush offices of the white-shoe law firms, then certainly in the shabby corridors of sole practitioners who survive on court appointments and the occasional paying client. A “horizontal fee,” of course, is payment for legal services exacted by the lawyer in a horizontal and unclothed position, that is to say, payment in sex instead of in money.

Sometime after Gary began representing Johnathan, the U.S. Attorney’s Office had reason to believe that the lawyer was having a sexual affair with Johnathan’s mother. No one knows for sure whether such an affair occurred (except for Gary and Mom). If their sexual tryst happened at all, it began when Mom hired Gary and ended a few months later, right about the time Johnathan took a plea deal.

aba170607The prosecutor confronted Gary with his suspicions. Gary coyly answered some questions but refused to answer others, leaving the Assistant U.S. Attorney believing that Gary “certainly suggested to us that the information that we had received was, was correct.” The conversation led the prosecutors to believe that Gary had forgiven “significant legal fees” in connection with the relationship. The classic “horizontal fee.”

The AUSA reported his suspicions to the district court, telling the judge he believed there was a potential conflict, that the conflict was personal and sensitive, that Gary denied any conflict, that a hearing on the conflict was necessary, and that Johnathan should have independent counsel to advise him on the conflict.

The judge called the prosecutor and Gary into chambers, and asked Gary about the allegation in what the Court of Appeals called “an eyebrow-raising colloquy.” Gary refused to answer the judge’s questions, and suggested the judge instead deduce the answers from the plot of an underperforming 2000 movie named The Contender. The appalled judge, said: “You won’t deny it. You won’t deny it. You want to invoke a movie, that’s fine. So let’s have the hearing.”

At the hearing, the district court appointed another lawyer to give Johnathan independent advice, and the government explained its concerns. Gary again refused to answer questions about his relationship, if any, with Johnathan’s mother. This put the court in a quandary, because the law requires that – which a conflict of interest charge is leveled – the court first has an “inquiry” obligation, to investigate the facts in order to determine whether the attorney in fact suffers from an actual conflict, a potential conflict, or no genuine conflict at all. Only then is there to be a hearing at which the defendant may waive the conflict (if possible) or ask for new counsel.

The district court did what it could, and during the hearing asked Johnathan if he wanted to waive the conflict, assuming for the sake of argument that there even was a conflict. Johnathan said he would waive the conflict, but employed enough logic to knot a pretzel stick:

If a sane person were to listen to this and say the allegation is true, then logically they would know that there obviously is a conflict and they would never accept anything. They would throw this away… [T]o state to me “okay, you have to assume that this is true and then make a decision upon that,” well, logic would, would–you know, it would be illogical to continue if it were true.

The court reluctantly accepted this “waiver” and went forward. Ultimately, Johnathan got a 400-month sentence.

conflictmix170607After reflecting on the reality of what a 35-year sentence meant, Johnathan appealed – now represented by a different lawyer – alleging that Gary had a conflict of interest (and that his deal with the government gained him nothing). Meanwhile, Gary died, meaning that he is likely to be only marginally less forthcoming in any future testimony. Two days ago, the 2nd Circuit – clearly troubled by the whole affair – turned down his appeal, while virtually assuring him of a hearing on any forthcoming 2255 motion.

So, assuming the fact as alleged are right, what might the conflict be? The Circuit accepted the government’s analysis:

(1) because his relationship with Mom ended, Gary might bear a grudge against Johnathan or might want to spend as little time with him as possible;

(2) given the ethical and personal problems with the relationship, Gary might have an interest in rolling over for the prosecution, in order to persuade the government not to report him to the disciplinary committee; or

(3) the fee arrangement may have been based on the relationship, so that when Gary was no longer scoring with Mom, he might just want to end the representation quickly knowing he wasn’t going to be paid anything more.

The appellate panel framed the problem as this: If the waiver is valid, Johnathan has no claim. But if the waiver is invalid – either because the conflict is unwaivable, because it was not knowing and intelligent, or because the district court failed to make the required inquiry – then the Circuit has to consider the underlying conflict claim itself. If the conflict were potential, Johnathan would have to show it somehow prejudiced him. If the conflict were actual, however, he would only have to make the lesser showing of adverse effect.

shark170607The 2nd complained that “this record allows us to answer few of those questions. We do not know whether there was a sexual relationship (or its timing, duration, or terms), whether a conflict arose from it, whether that conflict was so severe as to be unwaivable, or whether DeLaura was harmed by it. An evidentiary hearing would be needed to sort this out. Because the Supreme Court has expressed a preference for resolving ineffectiveness claims on collateral review… we affirm the conviction rather than remand the case to the district court. But in the event DeLaura’s new attorney files a habeas petition, we think an evidentiary hearing may be in order and that DeLaura’s ineffectiveness claim would merit searching evaluation.”

The Circuit’s deferral of the question is unremarkable. The same, however, cannot be said of the facts. We are puzzled that the district court did not call Mom to the stand during the hearing and ask her. Whatever the reason, Mom’s visits to her son must be pretty interesting.

United States v. DeLaura, Case No. 14-1204 (2nd Cir., June 5, 2017)

– Thomas L. Root

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Supreme Court Decides Two Forfeiture Cases, Picks Up Cellphone Data Case for Next Term – Update for June 6, 2017

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SUPREME COURT DECIDES TWO FORFEITURE ISSUES, GRANTS CERT ON CELLPHONE DATA QUESTION
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Terry Honeycutt was just a clerk, not an owner – but the Court of Appeals tried to stick him for the illegal profits.

The Supreme Court was busy yesterday – as it will be all this month – deciding two cases that relate directly or indirectly to the monetary side of sentencing and granting certiorari in a Detroit robbery case on a cutting-edge cellphone data issue.

In Honeycutt v. United States, a 6th Circuit case, the Court held that forfeiture under the Comprehensive Forfeiture Act of 1984, 21 USC § 853(a)(1), which requires forfeiture of any property “constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” some drug crimes, is limited to property that the defendant himself actually obtained as the result of the crime.

This means that the statute cannot require forfeiture by Terry Honeycutt, the petitioner in the case, who was a clerk at his brother’s grain and feed store. Terry and his brother sold large quantities of an iodine-based water purification product that they knew could be used to manufacture methamphetamine. Terry had no ownership interest in his brother’s store and did not personally benefit from the illegal sales. Despite this, the government asked the district court to hold Terry jointly and severally liable for the profits from the illegal sales and sought a judgment of $69,751.98, the profits from the conspiracy. The district court refused, holding that Terry was a salaried employee who had not received any profits from the sales.

The 6th Circuit reversed, holding that the brothers, as co-conspirators, were jointly and severally liable for any conspiracy proceeds.

Yesterday, the Supreme Court said that because forfeiture under 21 USC § 853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime, a court cannot order forfeiture from Terry Honeycutt, who had no ownership interest in his brother’s store and made nothing from the sales.

Honeycutt v. United States, Case No. 16-142 (June 5, 2017)

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The Securities and Exchange Commission has authority to investigate violations of federal securities laws and to bring enforcement actions in district court if its defendant “disgorge” illegal profits and pay civil fines.

limitations170606In 2009, the SEC brought an enforcement action against Charles Kokesh, arguing he has violated securities laws by concealing $34.9 million he had unlawfully pocketed from four business- development companies from 1995 to 2009. The Commission asked for civil penalties and disgorgement.

A jury found for the SEC, but the district court held that a 5-year limitations period in 28 USC § 2462 applied to the monetary civil penalties but not the disgorgement. The 10th Circuit agreed, holding that disgorgement was neither a penalty nor a forfeiture.

Yesterday, the Supreme Court reversed the 10th Circuit, concluding that SEC disgorgement operates as a penalty under the terms of 28 USC § 2462. Therefore, any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim arose. Because a lot of what Kokesh did was older than 5 years when the suit was brought, those sums will have to be carved out of the district court award.

The decision could have favorable implications for some forfeiture and restitution issues in federal criminal cases.

Kokesh v. SEC, Case No. 16-529 (June 5, 2017)
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Finally, the Court granted certiorari and agreed to review a 6th Circuit decision in which Timothy Carpenter was convicted of multiple counts of aiding and abetting the use of a gun in a series of cellphone store robberies. Tim was the lookout man/getaway driver, and did not carry a gun himself.

cellphoneloc170606Tim was convicted on six counts of robbery after police combed through a month’s worth of location points collected by cell towers and placed him near storefronts where armed robberies occurred. Relying on the Stored Communications Act, which allows phone companies to disclose records when the government provides “specific and articulable facts showing that there are reasonable grounds to believe” that records at issue “are relevant and material to an ongoing criminal investigation,” the government got an order to obtain phone records for 16 phone numbers, including Tim’s cellphone. The several months’ worth of historical cell-site records received showed which cell towers were linked to which cellphone while it was in use. The records allowed the government to determine that, over a five-month span in 2010 and 2011, Tim’s cellphone connected with cell towers in the vicinity of the robberies.

Tim argued in district court and at the 6th Circuit that the records should be suppressed because the government had not obtained a warrant for them. The 6th rejected Tim’s argument that disclosure of his phone records was a search for which the government needed a warrant, holding cellphone companies collect the location data “in the ordinary course of business” for their own purposes. What’s more, the Circuit said, Tim had no reason to think his cellphone records would be kept private, the court explained, because the records only show his cellphone connecting to specific cell towers, without providing any information about the content of his calls.

The U.S. Supreme Court picked the Carpenter case from a thundering herd of similar cert petitions to rule on the question of whether law enforcement is required to obtain a probable-cause court warrant to access such cellular location data.

“Because cell phone location records can reveal countless private details of our lives, police should only be able to access them by getting a warrant based on probable cause,” Nathan Wessler, a staff attorney with the ACLU Speech, Privacy and Technology Project said in a statement. “The time has come for the Supreme Court to make clear that the longstanding protections of the 4th Amendment apply with undiminished force to these kinds of sensitive digital records.”

Carpenter v. United States, Case No. 16-402 (certiorari granted  on June 5, 2017)

International Business Times, Can Police Track Your Phone Without Warrant? Supreme Court To Decide On Location Data (June 5, 2017)

Amy Howe, Justices to tackle cellphone data case next term, SCOTUSBlog.com (June 5, 2017)

– Thomas L. Root

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