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11th Circuit Says Perfect is the Enemy of the Good – Update for April 28, 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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WHAT’S ‘SUBSTANTIAL’? WE KNOW IT WHEN WE SEE IT…

ravel170428It’s an article of faith among federal prisoners seeking to attack their convictions or sentences that all they need to find is one flaw, a loose thread in their prosecution that they can pluck, and the whole thing can ravel from a finely constructed conviction into a big pile of nothing.

For those latecomers to the world of law and order, we give you Judge Ed Carnes of the 11th Circuit, who began a 281-page decision handed down this week with the observation that

Because it is a document designed to govern imperfect people, the Constitution does not demand perfect trials and errors do not necessarily require the reversal of a conviction. More than thirty years ago, the Supreme Court reminded us: “As we have stressed on more than one occasion, the Constitution entitles a criminal defendant to a fair trial, not a perfect one.”

The case was a seamy one. A jury convicted the defendant of five sex-related crimes involving minors. His appeal focused on one issue: After the lunch break on the third day of the six-day trial, defense counsel returned late. Apparently, no one noticed his absence, so questioning of one of the 13 government witnesses continued. Counsel missed seven minutes of 31.4 hours of actual trial time, equaling 18 out of a total of about 2,745 answers given by government witnesses during the trial. What little testimony counsel missed was repeated in even more detail by the same witness after counsel returned to the courtroom.

sleeping170428In his 2014 appeal, the defendant convinced two out of three judges that his 6th Amendment right to the “Assistance of Counsel for his defence” were violated, based on the Supreme Court decision in United States v. Cronic. The Cronic Court concluded “that a trial is unfair if the accused is denied counsel at a critical stage of his trial.” Cronic presumed a defendant was prejudiced by such a denial, without the need for the defendant to show that if he had not been denied counsel, the outcome might have been better for him.

Unfortunately for the defendant, enough of the active judges on the 11th Circuit bench were troubled by the panel decision that they voted to rehear the case en banc. On Wednesday, they held that perfection in trials – as in life – is the enemy of the good.

perfect170428A majority of the en banc judges agreed that it was “a violation of the Sixth Amendment for inculpatory testimony to be taken from a government witness without the presence of at least one of the defendant’s counsel, regardless of whether the judge or the AUSA noticed that counsel was not there.” But the rub was this: unlike Cronic, the Circuit held that it would not automatically reverse for the denial. Rather, it said that “the harmless error rule is applicable to this brief absence of counsel from the courtroom, and that the absence was harmless beyond a reasonable doubt in this case. “

The 11th Circuit had previously held that the absence of defense counsel while government witnesses gave testimony that did not directly inculpate the defendant was not Cronic error. Now, the Circuit has gone a bit further, holding that absence of defense counsel during testimony that implicates the defendant is not presumed to be prejudicial if the absence is not for a “substantial portion” of the trial.

And what is “substantial?” The en banc Court cobbled together a four-part test, borrowing from a 4th Circuit case about a sleeping lawyer and adding its own gloss to the factors: (1) the length of time missed, (2) proportion of trial missed, (3) significance of the missed portion, and (4) whether the specific part of the trial that counsel missed is known or can be determined.

Using its newly devised test, the Circuit concluded that the portion of the trial missed was not substantial. Because it was not substantial, prejudice is not presumed, but instead, the Court examines whether the error was harmless. The reasoning seems somewhat circular to us. If the part of the trial missed was “significant” it would seem that the defendant was probably prejudiced. An observer could be forgiven for concluding that the Court said that if the defendant was prejudiced, then prejudiced is presumed. If he or she was not prejudiced, then the lawyer’s absence will be subject to a test for prejudice.

We’re not alone at being puzzled by the decision. Over half of the 281 pages are devoted to four concurring and three dissenting opinions.

knowit170428It’s hard to gin up any sympathy for the defendant, who was found guilty of some horrendous crimes (for which he got life in prison) and who could cite no harm that flowed from his attorney missing fewer than one-tenth of a percent of the answers, almost all of which were repeated. But hard cases make bad law, and the Circuit’s four-part “test” does not seem to be that far from Justice Potter Stewart’s test for hard-core pornography from Jacobellis v. Ohio:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it…

United States v. Roy, Case No. 12-15093 (Apr. 26, 2017)

– Thomas L. Root

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Investigation Drives Strategy, Not the Other Way Around – Update for April 27, 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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PISS POOR PLANNING…

We’re only nine days from the 143rd running of the Kentucky Derby, one of three times in the year when average Americans pretend to be interested in horse racing. Today, we’re remembering Derby great Old Rosebud.

rosebud170427You don’t recall? Old Rosebud won the 40th running of the Derby in 1914 by eight lengths, a tie for the biggest margin of victory in Derby history. We’re reminded of that by today’s case, a habeas corpus appeal of a 28 USC 2254 ruling from California.

If grounds for habeas corpus actions were horses, ineffective assistance of counsel would be Old Rosebud. The 6th Amendment does not entitle criminal defendants to legal counsel at trial, it entitles them to effective legal counsel. A defendant is not entitled to Perry Mason. But then, he or she is not to be saddled with Vinny Gambini, either.

vinnie170427Ineffective assistance of counsel is far and away the most claimed constitutional defect in the world of post-conviction remedies. Despite (or maybe because) the ineffective assistance of counsel claim is so well used, courts look at such claims with a gimlet eye. A successful claimant has to show, first, that his or her lawyer screwed up, that is, did something or failed to do something that a lawyer of average skill would not have done or omitted. And that’s the easier of the standards. The claimant then has to show that except for the screwup, there is a reasonable probability that things would have turned out differently.

That second standard is called “prejudice.” It’s not prejudice in the classic sense, but rather means that the screwup somehow worked to the defendant’s detriment. This necessarily means that how close the case was matters. We see the problem often. The habeas petitioner tells us that her attorney failed to call a witness who would have said she was 20 miles away from the convenience store at the time it was robbed. If the only evidence is a grainy video of someone the same height as the defendant wearing sunglasses and a black hoodie and a clerk who says he thinks the defendant was the robber, a lawyer’s failure to call an alibi witness is pretty significant.

Unfortunately, however, there was a busload of nuns parked outside of the convenience store, and all of the sisters saw the defendant leave the 7-11 with a bag of swag, and then take off the glasses and hoodie to take a selfie in front of the store. All of a sudden, a single alibi witness is pretty unlikely to have changed the outcome.

nuns170427Courts don’t like to second-guess defense attorneys. Over the years, the rule has evolved that if the lawyer investigated the evidence and witnesses, and then chooses a strategy, the courts will seldom question that strategy. In our example, the lawyer read the discovery, talked to a few of the nuns, and quickly concluded that an alibi defense would look phony. He instead decided that since his client was known as “Mushmouth Marianne,” his better defense was to argue the clerk misunderstood her. She was there to pick up the garbage, but when she said, “Give me all your trash,” the clerk thought she said, “Give me all your cash.” And inasmuch as it was a sunny, clod day, a hoodie and sunglasses made perfect sense.

Pretty weak, but the lawyer investigated the evidence and picked a strategy based on what looked the most promising. Courts do not tend to Monday-morning quarterback decisions like that. But occasionally courts need to be reminded that reasonable investigation is what leads to development of strategy. It cannot be the other way around.

Consider what happened to poor, simple teenager Sarah Weeden. She was convicted in California of felony murder and sentenced to 29-to-life for her role in a bungled robbery. It turns out that while 14-year old Sarah was not present at the scene of the crime, she had some involvement in making the robbery happen.

psy170427Weeden’s entire defense at trial consisted four character witnesses, who generally are people least likely to sway a jury. Although there was plenty of evidence that Sarah had heard about the robbery plans and helped lure the marks – some boys she had met earlier – to a park where the robbery occurred (and the robber’s gun discharged accidentally, killing one of the victims), all her attorney presented was the testimony of four character witnesses who said Sarah was not the kind of girl to who would plan a robbery. Sarah’s attorney did not get her evaluated by a psychologist or present expert testimony about the effect of her youthfulness on her mental state.

With a new lawyer, Sarah brought a habeas corpus motion claiming her trial counsel was ineffective for failing to investigate psychological evidence. She submitted a report from a psychologist concluding that “it is extremely unlikely Sarah would intend to commit robbery or knowingly participate in one,” and “she would probably be slow to understand that a robbery was being considered by others if their intentions were not clearly articulated.” The report found Sarah to “quite passive and vulnerable to being manipulated by others,” and concluded she had “serious cognitive deficits (for example, 91% of people her age function[ed] intellectually at a higher level),” “well below average language skills,” and “a strong tendency to miss important environmental cues.”

Sarah’s lawyer defended his decision, claiming he did not obtain a psych evaluation of his client because “regardless of what the doctor would have concluded, it would be inconsistent with the defense that I was putting forth.” Counsel also speculated the prosecution might have used the results of an examination against her. The state court concluded that defense counsel’s failure to obtain a psychological examination was a “sound tactical decision.” State appellate courts agreed, as did a federal district court.

Last week, the 9th Circuit took a very different view.

PPP170427The Circuit complained that the state courts’ conclusions that Sarah’s attorney made a “reasonable decision” because counsel feared that the results of an expert evaluation might undermine his trial strategy “puts the cart before the horse.” The Court said, “Counsel cannot justify a failure to investigate simply by invoking strategy…. counsel’s investigation must determine trial strategy, not the other way around.” Sarah’s counsel could not have reasonably concluded that a psychological examination would conflict with his trial strategy without first knowing what such an examination would reveal. Besides, the Circuit pointed out, defense counsel’s conclusion that the prosecution could have used the results of an examination against Sarah was nonsense: a defendant must disclose expert reports she intends to rely on at trial, but if the evaluation was not helpful, counsel could decide not to use it, and thus not produce it.

“The correct inquiry,” the 9th said, “is not whether psychological evidence would have supported a preconceived trial strategy, but whether Weeden’s counsel had a duty to investigate such evidence in order to form a trial strategy, considering all the circumstances…. The answer is yes.” The State’s felony murder theory required proof that Sarah had specific intent to commit the robbery, so her “mental condition was an essential factor in deciding whether she actually had the required mental states for the crime.”

But did the mistake prejudice Sarah? The appellate panel said it did. Sarah’s psychologist concluded that “it is extremely unlikely she would intend to commit robbery or knowingly participate in one, that she would probably be slow to understand that a robbery was being considered by others if their intentions were not clearly articulated, and that she was “quite passive and vulnerable to being manipulated by others.” This testimony from a qualified expert would have added an entirely new dimension to the jury’s assessment” of the critical issue of Sarah’s mens rea.

Weeden v. Johnson, Case No. 14-17366 (9th Cir., Apr. 21, 2017)

– Thomas L. Root

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Government’s FOIA Practice Get a “CREW Cut” – Update for April 24, 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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BAIT-AND-SWITCH

For those contesting constitutional infirmities in their convictions, nothing succeeds like facts. Prisoners representing themselves can recite precedent, circuit court bloviations and legal mumbo-jumbo ad nauseum, but none of it advances their cause unless they have facts – beautiful, concrete, sharp-edged, pulsating facts – to support their claims.

Blanche Dubois always depended on the kindness of strangers, but pro se litigants that such dependence is not a strategy (at least not a winning one). Usually, the only tool in a prisoner’s investigative toolbox is the Freedom of Information Act.

stanley170424There may be no federal statute that suffers a wider chasm between principle and operation. The government loves to call FOIA “the law that keeps citizens in the know about their government.” There is a “presumption of openness” underlying FOIA: agencies The FOIA provides that when processing requests, agencies proclaim that their guiding light is to “withhold information only if they reasonably foresee that disclosure would harm an interest protected by an exemption, or if disclosure is prohibited by law.”

We don’t need to recite our prior disillusion and disgust with agency management of FOIA requests. You can read here about how “the most transparent Administration in history” sandbagged FOIA for the last 8 years (and if you think the current Administration will do better, join the other three such believers over there in the corner – Santa Claus, the Easter Bunny and the Tooth Fairy).

santa170424It’s ironic that last week’s FOIA decision from the D.C. Circuit concerned records that related in part to former House Speaker Tom DeLay, because “delay” was the primary defense played by the Department of Justice.

Thirteen years ago, the FBI opened a public corruption investigation into the activities of then-lobbyist Jack Abramoff. Ultimately, 21 people pled guilty or were convicted of offenses related to an influence-peddling racket. Two of those convicted had been senior aides to former House Majority Leader Tom DeLay. The FBI never indicated whether DeLay himself was a subject of the investigation, but in August 2010, DeLay himself announced DOJ had informed him he would not be charged.

A D.C. advocacy outfit named Citizens for Responsibility and Ethics in Washington – which is a nonpartisan do-gooder group or a left-wing attack dog in mufti (choose whatever floats your political boat) – filed an FOIA request in 2010 to get records about DeLay’s involvement in the investigation. DOJ managed to stretch the request into a lawsuit – including as 2014 trip to the Court of Appeals – without ever providing much of substance.

Initially, DOJ refused to provide any requested documents because they “involved third parties, they were generally exempt from disclosure and could not be released absent express authorization from each third party, proof of the third party’s death or a clear demonstration that the public interest in disclosure outweighs the personal privacy interest and that significant public benefit would result from the disclosure of the requested records. CREW sued, and DOJ argued that all responsive documents were categorically exempt under FOIA Exemptions 3, 6, 7(A), 7(C), 7(D) and 7(E).

The District Court agreed. But on appeal, the D.C. Circuit reversed, holding that DOJ had “not met its burden to justify categorical withholding under Exemption 7(A) or 7(C)” and had not “provided sufficient detail at this stage for a court to determine whether a portion of the requested records may be withheld under Exemption 3, 7(D) or 7(E).”

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Is this the FBI response to CREW?

DOJ’s job on remand was to “make a more particularized showing as to what documents or portions thereof are exempt.” The FBI found of 328 pages of responsive material, 124 pages of which were released to CREW, although with redactions. The FBI withheld in full the remaining 204 pages. To justify its redactions and withholding, the FBI invoked FOIA Exemptions 3, 5, 6, 7(C), 7(D) and 7(E). Again, the District Court said, “good enough,” and threw out the CREW suit.

CREW appealed, arguing that the agency could not trot out a new Exemption 5 argument it had not used before, and that it cannot simply redact all the names in the documents other than DeLay and Abramoff on the basis of privacy.

The D.C. Circuit agreed. First, the Court said, in FOIA cases the government generally “must assert all exemptions at the same time, in the original district court proceedings.” There are only two exceptions, first when “pure human error” resulted in not raising the correct exemption earlier, and second “where a substantial change in the factual context of the case or an interim development in the applicable law forces the government to invoke an exemption after the original district court proceedings have concluded.”

foia160328DOJ did not claim either exception applied, but instead just said that because it raised Exemption 5 – which covers “inter-agency or intra-agency memoranda or letters that would not be available by law to a party other than an agency in litigation with the agency” – in connection with another document, it was not engaged in “gamesmanship.” The Court said that did not matter: “The timeliness rule is concerned not just with efficiency in a given case, but also with efficiency in the long run, and it disserves this broader goal to permit untimely defenses, even after they have been argued, to prevail… [The] timeliness rule does not require a finding of bad faith or intentional gamesmanship.”

FOIA Exemption 6 encompasses “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Exemption 7(C) protects “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information… could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

DOJ argued that revealing the names of others, some of whom were not indicted and some of whom were just witnesses and interviewees, would constitute an unwarranted invasion of privacy. CREW argued that some of the names of witnesses and subjects had already been made public in press releases and court documents, and that their privacy interests were lessened.

foia160930This kerfluffle illustrates the problem with FOIA litigation. It is hard for a requester to argue that information it has been denied should not be exempt, because without knowing what the information is, how can one argue whether it does or does not fit an exemption? The agencies love to make blanket arguments – all redacted names should be private, for example – and they often win cases on summary judgment with such claims.

Not today. The Circuit ruled that there are just too many moving parts to an Exemption 7(C) argument for summary judgment:

Because the myriad of considerations involved in the Exemption 7(C) balance defy rigid compartmentalization, per se rules of nondisclosure based upon the type of document requested, the type of individual involved, or the type of activity inquired into, are generally disfavored. The privacy interests of individuals who have not been convicted in connection with this investigation – and even more so those who have not been publicly linked with the investigation whatsoever – differ greatly from those of individuals who were convicted or pled guilty for their roles. Connecting the names of individuals to information contained in the documents at issue could add much, or not at all, to the public’s understanding of how the Government carried out its investigation and decision not to prosecute DeLay. There is little we can conclude in the abstract. This area is simply not well suited to categorical determinations.

CREW thus lives to fight another day. On remand to the District Court, DOJ must show the withholding of information under Exemptions 6 and 7(C) are based on “a particularized weighing of the public and privacy interests that would be implicated by the disclosure sought by CREW… The Government must account for the privacy interests at stake, recognizing that previous disclosures or admissions may have diminished those interests.

Citizens For Responsibility And Ethics In Washington v. United States Department of Justice, Case No. 16-5138 (D.C. Cir., Apr. 21, 2017)

– Thomas L. Root

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A Couple of Sentencing Tidbits from Washington – Update for April 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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SENTENCE REFORM – WAITING FOR THE DONALD

We’ve been hearing since last year that leadership in the House and Senate intend to resurrect the Sentence Reform and Corrections Act of 2015 in some form this year. But – like the weather – everyone seems to talk about it, but no one is doing anything about it.

Thus far this legislative year, as we’ve noted, there has been a dearth of criminal justice reform legislation introduced in Congress. A report released yesterday by the Brennan Center for Justice at New York University may hint at why.

Waiting170421On the subject of sentence reform, the Report notes that in January 2017, Sen. Charles Grassley (R-Iowa), chair of the Senate Justice Committee, and House Speaker Paul Ryan (R-Wisconsin) committed to reintroduce some version of the failed SRCA. However, the Report says, both Ryan and Grassley “are rumored to be waiting for the administration to announce its position before moving forward.”

Rumors flew in March, when President Trump’s son-in-law and advisor Jared Kushner met with Grassley and Sen. Dick Durbin (D-Illinois) – the top-ranking Democrat on the Committee, to discuss sentencing and reentry legislation. Kushner, whose father did federal time for white-collar offenses, has more reason than most to favor federal sentencing reform, and reports say that he does.

The Brennan Report says, “Trump’s personal positions on such bills are unknown. It remains to be seen whether any advice from Kushner and backing by conservative reform advocates will influence the President. Some conservatives support expanding reentry services, and modest sentencing reductions for low-level offenders. The Trump Administration could take a similar stance, backing modest prison reform in Congress while continuing to pursue aggressive new prosecution strategies.”

Attorney General Jeffrey Sessions
Attorney General Jeffrey Sessions

Elsewhere in the Report, the Brennan Center predicts that “recommendations for more punitive immigration, drug, and policing actions” will flow from the Administration over the next few months. It notes that a crime task force established by Attorney General Jeffrey Sessions is scheduled to deliver its first report by July 27. The Center foresees the task force calling for “a rescission of Obama-era memos on prosecutorial discretion, which helped decrease the federal prison population, and diverted low-level drug offenders away from incarceration.”

Brennan Center for Criminal Justice, Criminal Justice in President Trump’s First 100 Days (April 20, 2017)

– Thomas L. Root

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COMPASSIONATE KISSES

We watched with some glee a year ago when the U.S. Sentencing Commission horse-shedded the BOP over that agency’s chary use of compassionate release. It was fun while it lasted, but it didn’t last very long.

compas160418“Compassionate release,” a provision enshrined in 18 USC § 3582(c)(1), was enacted by Congress in the Sentencing Reform Act of 1984. Besides replacing the prior sentencing regime with the Guidelines, the Act strictly limited the ability of federal courts to revisit sentences once they became final (that is, the time for appellate review expired). Parole was eliminated, with sentences to be served fully (with an allowance of about 14% for good conduct in prison).

One safety valve crafted into the Act by Congress was to give courts the ability to modify or terminate sentences if prisoners were able to show “extraordinary and compelling” reasons justifying early release. Congress tasked the Sentencing Commission with the job of identifying the criteria to be used in determining whether a reason was “extraordinary and compelling.” The statute delegated BOP with the task of identifying prisoners who met these criteria. The idea was that the BOP would identify who qualified, and then petition the district court for grant of compassionate release. The district judge would make the final determination.

The entire process was considered by Congress to be an act of grace. Inmates have no right to petition the court directly under 18 USC 3582(c)(1). They may not seek judicial review of a BOP refusal to recommend release. They may not appeal a district court’s denial of compassionate release. This means the power to free a prisoner is placed in the hands of the jailer whose job it is to keep him locked up, who incidentally is represented by the prosecutor – the US Attorney – whose job it is to lock up federal criminal offenders.

So how does the system work? We’ll let the numbers speak. In 2015, out of about 205,000 federal inmates, the BOP found extraordinary and compelling circumstances justifying compassionate release only 62 times. That works out to 0.03% (or about 3 prisoners out of every 10,000). Those odds stink. It’s hard to believe that so few prisoners qualify for compassionate release.

table170421The BOP’s stinginess has drawn fire from the Sentencing Commission. At the April 2016 hearing we noted above, commissioners complained that the BOP had adopted its own definition of “extraordinary and compelling.” The criteria the Commission adopted directed the BOP to confine itself to determining if a prisoner meets the criteria the Sentencing Commission adopted, and – if so – bringing a motion for reduction in sentence to the district court.

BOP’s management of compassionate release is no different than a district judge deciding that she would adopt her own definition of “career offender,” no matter what the Sentencing Commission might say in Chapter 4B of the Guidelines.

compassion160124In an article published this week by Learn Liberty, Mary Price – general counsel to Families Against Mandatory Minimums – cited cases where even the most slam-dunk compassionate release cases took over a year for the BOP to process. She noted that the BOP was hurting itself as well as the affected inmates: compassionate release of elderly and infirm inmates makes economic as well as social sense, and saves the BOP from caring for the most expensive and least dangerous of its inmates.

Ms. Price wrote that

if the BOP is unable or unwilling to treat the compassionate release program as Congress intended, Congress should take steps to ensure that prisoners denied or neglected by the BOP nonetheless get their day in court. Congress can do so by giving prisoners the right to appeal a BOP denial to court or to seek a decision from the BOP in cases… in which delays stretch out over months or even years. Such a right to an appeal will restore to the courts the authority that the BOP has usurped: to determine whether a prisoner meets compassionate release criteria and if so, whether he deserves to be released.

Institute for Humane Studies, George Mason University, Mary Price, How the Bureau of Prisons locked down “compassionate release” (Apr. 18, 2017)

– Thomas L. Root

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2nd Circuit Holds “In Guidelines” Sentence to be Unreasonable – Update for April 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.

LISAStatHeader2smallA SHOT ACROSS THE BOW

We have to begin, as always, with our usual disclaimer: child pornography is odious. The creation of it has a terrible impact on the children forced into such conduct. And of course, we – like the overwhelming majority of people – are repulsed by child porn itself. Even reading details of it in appellate court decisions often has us getting up frequently to wash our hands.

childporn170420As a result, there is hardly a crime easier to demagogue than child pornography. Congress has juiced the kiddie porn sentencing guidelines repeatedly, because – after all – who could object to hammering depraved people who looked at kiddie porn with what are effectively life sentences? Certainly not legislators. And can you imagine a senator or House member who voted against dictating guideline levels to the Sentencing Commission (who is expert in sentencing matters)? Any challenger at reelection time is going to point at the unfortunate solon and shout, “My opponent voted to let child molesters out of prison early!!!”

pork170420It’s the kind of thing (along with eating one too many pork-chops-on-a-stick) that will keep a politician awake at night.

Seven years ago, the U.S. Court of Appeals fired the first warning shot at the child porn guidelines in United States v. Dorvee. After reviewing in detail the politically-charged and commonsense-challenged history of the child pornography guideline, the Court “encouraged” district judges “to take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 – ones that can range from non-custodial sentences to the statutory maximum – bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.”

shot170420Last Monday, the 2nd Circuit revisited the question, and in a remarkable decision – a real shot across the bow for the child pornography Guidelines – held that a child porn sentence that fell within the calculated Guidelines range was nevertheless substantively unreasonable. And it did so even where the defendant was rather unsympathetic.

To our knowledge, no court has ever before held that a within-range Guidelines sentence was substantively unreasonable. That alone makes today’s decision a remarkable case.

Joe Jenkins – a man with no prior criminal conduct – was on his way to Canada to meet his parents for a family vacation. When Joe crossed into Canada, Canadian customs people thought he was acting squirrely, and so they inspected his laptop and a couple of thumb drives he had with him. They found a lot of kiddie porn.

Joe was charged in Canada, but – being released on bail – he beat feet back to the US. The Mounties, deciding that getting mad was not as rewarding as getting even, asked US Homeland Security whether they might be interested in Joe’s collection. They were. Joe was charged with a count of possession of child porn, and another of transportation of such porn across state lines.

bound170420At trial, Joe was obstreperous, sharp-tongued and uncooperative. He was convicted, and the court figured his Guidelines as 210-240 months. Joe was sentenced to 120 months for possession, the statutory maximum. On the transportation count, he got a concurrent sentence of 225 months, with a supervised release term of 25 years after the sentence ended. The district court thought Joe’s disrespect for the judicial process – not to mention some of the whoppers he told on the stand – suggested he was likely to possess child porn again after he got released.

The 2nd Circuit, in an unprecedented decision, held that Joe’s “in Guidelines” sentence was excessive. Noting that “in view of Jenkins’s age [43], this sentence effectively meant that Jenkins would be incarcerated and subject to intense government scrutiny for the remainder of his life,” the Court rejected the sentence as violating § 3553(a)’s “parsimony clause,” which instructs a district court to impose a sentence “sufficient, but not greater than necessary,” to achieve § 3553(a)(2)’s goals.

The Court noted that “bringing a personal collection of child pornography across state or national borders is the most narrow and technical way to trigger the transportation provision. Whereas Jenkins’s transportation offense carried a skittyporn170420tatutory maximum of 20 years, the statutory maximum for his possession offense was “only” 10 years. Jenkins was eligible for an additional 10 years’ imprisonment because he was caught with his collection at the Canadian border rather than in his home.” What’s more, the Court said, the Sentencing Commission’s own statistics suggest that Joe’s age makes him much less likely to reoffend after a 10-year prison stint, which is at odds with the district judge’s holding to the contrary.

The Circuit reserved its most withering criticism for the enhancements that applied to Joe’s Guidelines calculations. The four most common include a 2-level increase for use of a computer and another increase for “more than 600 images.” The Court said that in Dorvee,

we noted that four of the sentencing enhancements were so “run-of-the-mill” and “all but inherent to the crime of conviction” that “[a]n ordinary first-time offender is therefore likely to qualify for a sentence of at least 168 to 210 months” based on an offense level increased from the base level of 22 to 35… The concerns we expressed in Dorvee apply with even more force here and none of them appears to have been considered by the district court. Jenkins received precisely the same “run-of-the-mill” and “all-but-inherent” enhancements that we criticized in Dorvee, resulting in an increase in his offense level from 22 to 35. These enhancements have caused Jenkins to be treated like an offender who seduced and photographed a child and distributed the photographs and worse than one who raped a child…

kporn160124The Circuit cited Sentencing Commission stats showing that 96% of child porn possession defendants received the enhancement for an image of a victim under the age of 12, 85% for an image of sadistic or masochistic conduct or other forms of violence, 79% for an offense involving 600 or more images, and 95% for the use of a computer. When nearly everyone qualifies for the enhancement, it ceases being an enhancement and begins being merely a characteristic of the underlying offense.

The 2-1 majority observed that

a sentence of 225 months for a first-time offender who never spoke to, much less approached or touched, a child or transmitted explicit images to anybody is unreasonable. Additional months in prison are not simply numbers. Those months have exceptionally severe consequences for the incarcerated individual. They also have consequences both for society which bears the direct and indirect costs of incarceration and for the administration of justice which must be at its best when, as here, the stakes are at their highest.

The appellate court concluded that “on remand, we are confident that Jenkins will eventually receive a sentence that properly punishes the crimes he committed. But Judge Suddaby, in imposing his sentence, went far overboard.”

United States v. Jenkins, Case No. 14-4295 (2nd Cir., Apr. 17, 2017)

– Thomas L. Root

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Doing The Money Hum at the Supreme Court: Two Restitution Decisions Today – Update for April 19, 2017

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U.S. SUPREME COURT HANDS DOWN TWO CRIMINAL DECISIONS ON RESTITUTION

The Supreme Court handed down two decisions this morning related to restitution. One deals with appealing have to pay it, the other with getting it back. Defendants split the ticket, 1-1.

moneyhum170419In Manrique v. United States, a defendant had an initial restitution judgment entered against him that had no amount specified, the district court holding that restitution was mandatory but deferring determination of the amount until later. Marcelo Manrique filed a notice of appeal from the initial judgment. Months later, the district court entered an amended judgment, ordering the defendant to pay $4,500 restitution to one of the victims. He did not file a second notice of appeal from the amended judgment. When Marcelo nonetheless challenged the restitution amount before the 11th Circuit, the government argued that he had forfeited his right to do so by failing to file a second notice of appeal. The Circuit agreed, holding the defendant could not challenge the restitution amount.

Today, the U.S. Supreme Court agreed, holding a defendant wishing to appeal an order imposing restitution in a deferred restitution case must file a notice of appeal from that deferred order. If he or she fails to do so and the government objects, the amended restitution order may not be challenged on appeal. The Supremes said 18 USC 3742 (the appeals statute) and Rule 3(a)(1) of the Federal Rules of Appellate Procedure contemplate a defendant will file a notice of appeal after the district court has decided the issue sought to be appealed. The Court did not decide whether filing the second notice of appeal was jurisdictional, because regardless, it was “at least a mandatory claim-processing rule, which is unalterable if raised properly by the party asserting a violation…” Because the government raised the violation in a timely manner, “the court’s duty to dismiss the appeal was mandatory.”

In Nelson v. Colorado, the plaintiffs had been found guilty of sex offenses against children. Shannon Nelson’s conviction was thrown out on appeal, and at a retrial, she was acquitted. Alonzo Madden was convicted at trial of two counts. One was reversed on appeal, and the second thrown out on habeas corpus. The state refused to retry him.

Meanwhile, both had been forced by the prison system to pay restitution and court fees. Once their convictions were invalidated, they sought to get their money back, but the Colorado Supreme Court said that the state’s Exoneration Act was the only way to get a refund, and that Act required that they prove they were innocent (a much different proposition than being not proven guilty).

money170419Today, the U.S. Supreme Court reversed. The high court said Colorado cannot retain their money simply because convictions were in place when the funds were taken from them. Once the convictions were erased, the presumption of innocence was restored. Colorado may not presume a person who is adjudged guilty of no crime, nonetheless remains guilty enough for monetary penalties. The Exoneration Act “creates an unacceptable risk of the erroneous deprivation of defendants’ property.”

Manrique v. United States, Case No. 15–7250 (Supreme Court, April 19, 2017)

Nelson v. Colorado, Case No. 15-1256 (Supreme Court, April 19, 2017)

– Thomas L. Root

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Abandon Hope? Not this Congresswoman… – Update for April 18, 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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TILTING AT WINDMILLS

We had an email from an inmate this week asking whether we were aware of a bill pending in Congress that would reduce by the half sentences of nonviolent inmates over 45 years old without any shots.

retread170418The short answer is yes, there is such a bill. The long answer is that this bill – H.R. 64, Federal Prison Bureau Nonviolent Offender Relief Act of 2017 – is the mother of all retreads, having been pending in the last Congress as H.R. 71, Federal Prison Bureau Nonviolent Offender Relief Act of 2015, and the Congress before that (H.R. 62, Federal Prison Bureau Nonviolent Offender Relief Act of 2013), and the Congress before that (H.R. 223, Federal Prison Bureau Nonviolent Offender Relief Act of 2011), and… well, you get the picture.

We can track the pedigree of the Federal Prison Bureau Nonviolent Offender Relief Act all the way back to the 108th Congress (2003-2004), which is when lone wolf Sheila Jackson-Lee (D-Texas) first introduced the measure. She’s been tilting at the same windmill ever since, with her one-sponsor-only bill as certain a fixture in each new Congress as is the State of the Union address.

In 2015, one commentator wrote about Rep. Jackson-Lee’s bill (and others like it) that “these bills have very little likelihood of passage since only one representative, their author, has officially signed on as supporting them. Most of them were also introduced last Congress but were shelved.”

About 10,000 bills get introduced in every 2-year Congress, and only about 3% of them are passed. With the last Congress not able to even bring the Sentence Reform and Corrections Act of 2015 to the floor – after virtually all of its retroactive provisions (that would have helped federal inmates) were gutted – the “nonviolent offender” sentencing bill had no chance of even being taken up by a committee.

Attorney General Jeffrey Sessions
Attorney General Jeffrey Sessions

The new Administration, to put it charitably, is considerably less concerned than were Administrations of the past that federal inmates may be serving unfairly long sentences. Breitbart News, a right-wing website formerly run by Trump confidante Steve Bannon, was beating the drum last Saturday for a close audit of the 1,715 inmates whose sentences were commuted by President Obama. Most of those inmates are not released yet, but that did not deter Brietbart News, which quoted former federal prosecutor Bill Otis as saying, “What Attorney General Jeff Sessions’ Justice Department needs to do now is track the hundreds of fellows who got these pardons and commutations. With overall recidivism rates for drug offenses already being 77%, I think we have a pretty good idea, but the public should get specifics: How many of these guys re-offend; what’s the nature of the new crime; were there related violent crimes in the mix as well; and how many victims (including but not limited to addicts and overdose victims) were there?”

We monitor the bills being introduced in Congress every week. So far, nothing approaching the 2015 SCRA has been introduced.

Just last week, The Hill reported that Attorney General Jeffrey Sessions has directed federal prosecutors to crack down on violent crime. Sessions has tapped Steven Cook, a federal prosecutor and outspoken opponent of criminal justice reform, to lead Sessions’ new Task Force on Crime Reduction and Public Safety.

Alex Whiting, faculty co-director of the Criminal Justice Policy Program at Harvard Law School, was quoted as saying,

Obama moved away from that approach, and I think in the criminal justice world there seemed to be a consensus between the right and left that those policies, those rigid policies of the war on drugs and trying to get the highest sentence all the time, had failed… I don’t know if he is really going to be able to persuade the department to follow his lead on this.

Whiting questions whether Sessions would be able find 94 prosecutors to appoint as U.S. Attorneys who will back his new tough on immigration crime/violent crime approach.

windmill170418With this attitude prevailing in the Justice Department, any surge on sentencing reform (not to mention interest in executive clemency) is extraordinarily unlikely to occur. Nevertheless, a salute to Rep. Jackson-Lee, who makes Don Quixote look like a quitter.

Breitbart News, How Federal Agencies Keep Americans In The Dark About Crime Statistics (Apr. 16, 2017)

The Hill, Sweeping change at DOJ under Sessions (Apr. 16, 2017)

– Thomas L. Root

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The Price of Magical Thinking – Update for April 17, 2017

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YOU SHOULD HAVE TAKEN THE DEAL WHEN IT WAS OFFERED…

magic170417Defendants facing trial often engage in magical thinking about their cases: they believe jurors will find reasonable doubt in the most convoluted explanations, that judges will suppress evidence for the most tenuous of justifications, that they will be bailed out by the admissions of co-defendants who are being rewarded for testifying for the government.

None of this happens often. In fact, it happens so seldom – TV shows notwithstanding – that it’s newsworthy when it arises. With a conviction rate approaching 99%, the government enjoys many hits and very few misses.

But the same kind of magical thinking that convinces problem gamblers that they’re going to beat the odds afflicts defendants. What their lawyers tell them enters their ears but does not reach their brain except through a filter that strips out the cold, hard truth. And later, when the defendants have become inmates, they recall what they want to recall of it.

takedeal170417Take Glen Allen, for example. The lawyer defending him from drug trafficking charges filed a motion to suppress evidence obtained in a search, but told Glen the motion was not likely to succeed, and he should take a plea deal of 91-121 months. Glen refused the deal, and told his lawyer not to negotiate any more deals. He said the proposed sentence “was too much time for me to do according to my involvement.”

Glen figured he knew better than his attorney, so he tried to file his own motion to suppress. When that didn’t work, he asked to hire a new lawyer, which was granted.

When he hired new counsel Clay Janske – whom Glen selected because he “would not be scared” to try the case before a jury – Glen explained to him that he was not interested in a plea deal and told him not even to discuss a new plea offer. Clay litigated the motion to suppress, which was denied. A few days prior to trial, a co-defendant agreed to testify against Glen. The government told Clay that if Glen went to trial, it would seek an enhanced sentence under 21 USC 851 based on Glen’s prior drug felonies. The enhancement would give Glen a mandatory life sentence.

Glen came to his senses, and took the latest plea deal, a mandatory minimum of 10 years. The court figured his guidelines at 121-151 months, and gave him the bottom.

mistake170417Glen filed a petition under 28 USC 2255, claiming his attorney was ineffective in explaining the first plea agreement to him. Gary said Clay told him he would only get “a couple of more years” if he went to trial instead of pleading guilty. Clay said he had told him that, but it was based on inaccurate information Glen gave his lawyer about his criminal history. Glen said that if Clay had properly advised him about the potential of a mandatory life sentence, he would have pleaded guilty before the suppression hearing. Instead, he pleaded guilty right before trial and faced a 10-year mandatory minimum instead of a 5-year one.

What Glen didn’t get – and many defendants don’t get – is that it is not enough just to show a lawyer gave lousy advice about a plea deal. After all, lawyers do that all the time, either because they’re not focused, not very bright, or not working the right information. In order to win a claim of ineffective assistance for bad advice on a plea, a defendant has to be able to show that but for the bum advice, he or she would have probably taken the deal. Last Friday, the 8th Circuit showed just how inflexible a standard that can be.

oops170417The appeals court held Glen had nothing coming, because being ignorant of the risk he might get a life sentence was not all that drove Glen’s decision. True, the Court said, Glen pointed to the fact that once he learned he might get a life sentence, he quickly pleaded guilty. Glen argued that fact showed a “substantial, not just conceivable, likelihood” that he would have accepted the initial plea offer had Clay only advised him he could get life. The Circuit held, however, that it was clear that Glen’s decision “was motivated by his belief that the plea offer was not favorable enough and his hope that he would succeed on the suppression motion.”

guilty170417The district court found that two factors — the decision of Glen’s co-defendant to testify and the possibility of a life sentence — influenced Glen’s decision to plead guilty. In other words, Glen failed to prove that “but for his counsel’s advice, he would have accepted the plea.”

“Under similar circumstances,” the Circuit said, “we concluded a habeas claimant failed to show prejudice in part because he was unwilling to consider pleading guilty, had always expressed a desire to proceed to trial, and none of counsel’s discussions about the possibility of a guilty plea seemed to sway him.” Thus, the Court held, Glen “failed to prove, by a substantial likelihood, that he would have accepted the offer to plead pursuant to the earlier proposed terms.”

Allen v. United States, Case No 15-3607 (8th Cir. 2017)

– Thomas L. Root

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Rogue Agents, Impaired Judges: A Friday Collection – Update for April 14, 2017

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CRIMINAL JUSTICE BEHAVING BADLY

Two reports the past several days caught our attention, and neither speaks well for the federal criminal justice system.

atf170414ATF Agents Running Amok: First, the New York Times reported Wednesday that ATF agents in Bristol, Virginia, set up a secret bank account, which they funded with millions gained in illegally peddling cigarettes. The agents directed their informants to buy untaxed cigarettes, mark them up and sell them for a profit.

The Times said “the operation, not authorized under Justice Department rules, gave agents an off-the-books way to finance undercover investigations and pay informants without the usual cumbersome paperwork and close oversight, according to court records and people close to the operation.”

The account came to light in a civil suit claiming the agents broke federal racketeering law, brought in the Eastern District of North Carolina by a collective of tobacco farmers, who claim they were defrauded of $24 million. Two ATF informants received at least $1 million each from that sum, according to records produced in the suit. Most of the filings in the case are sealed.

The Times reported that “the scheme relied on phony shipments of snack food disguised as tobacco. The agents were experts: Their job was to catch cigarette smugglers, so they knew exactly how it was done.”

Money from the operations was used for a number of activities, including the renting of a $21,000 hotel suite at a NASCAR race, a trip to Las Vegas and a monetary donation to one agent’s daughter’s high school volleyball team.

ATFA170414What is not being said, of course, is that the agents’ misconduct – and the involvement of informants who took off-the-record payments – could have substantial repercussions in any criminal prosecutions where testimony of those agents or CIs played a role. The Department of Justice Inspector General began investigating the allegations after the Times contacted DOJ about the story.

Guardianship Sought for Federal Judge: A federal judge whose bizarre behavior on the bench preceded her mysterious removal from a number of cases was previously ordered to get treatment for alcoholism so severe a colleague believes she cannot take care of herself, according to court records released Thursday.

U.S. District Judge Patricia Minaldi’s alcoholism don’t answer whether it was a factor in the secretive interruptions in her Louisiana courtroom. But the documents show she moved into an assisted living facility specializing in “memory care.”

Minaldi170414In February 2016, during voir dire in a criminal trial, Judge Minaldi failed to determine if jurors were U.S. citizens and delivered no preliminary instructions. After the public defender made a motion for curative measures, the Judge ordered the prosecutor to deliver preliminary instructions to the jury, stopping to complain to the prosecutor, “I have no idea what’s going on here. Get your act together.” After the prosecutor and public defender jointly moved for a mistrial, the chief district judge removed Judge Minaldi from the case and assigned it to Judge Donald Ellsworth Walter, who then declared a mistrial.

The chief judge of the 5th U.S. Circuit Court of Appeals ordered Judge Minaldi to complete at least 90 days of substance abuse treatment, due to the severity of her alcoholism and “legal consequences she had attained.”

Judge Minaldi, 58, has been on medical leave since the end of 2016. Newly released records showing that she is in a long-term care facility are part of a lawsuit filed by Judge Minaldi’s Magistrate Judge, Kathleen Kay. The lawsuit challenges Judge Minaldi’s physical and mental capacity to manage her personal and financial affairs.

That lawsuit was filed under seal, but portions made public report at as of March 2017, Judge Minaldi’s condition was so severe that she was “unable to take care of her daily activities” and “unable to safely take care of her personal needs, financial matters, or her property matters,” the filing says.

Unlike the ATF situation, Judge Minaldi’s condition is medical, not a breach of trust. But like the ATF situation, the effects of recent revelations could reverberate across any number of criminal cases that appeared in front of the Judge over the past several years.

– Thomas L. Root

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Judges’ Decisions are Final… – Update for April 13, 2017

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DON’T LOOK BACK

fasttalk170413Every so often, broadcast stations are required to air an announcement of their contest rules. This is because the FCC believes that listening to an avalanche of mumbo-jumbo delivered by the guy who used to do the Fedex fast-talking commercials makes us more informed listeners.

We were reminded of one of the actually discernable phrases in the contest rules by today’s case: “Judges’ decisions are final.” Finality is a concept that seems hard for people to appreciate, but one which is necessary if the judicial system is every going to work.

fat170413Normally, inmates are on the wrong side of this argument. A prisoner who believes she was wrongly convicted or sentenced wants to keep pleading the case until someone in authority finally agrees with her. There are exceptions to finality – new evidence that could not have been discovered before, a new court decision that meets requirements for being applied retroactively, even a retroactive change in the guidelines. But mostly, “final” means final.

It today’s case, finality actually worked in favor of the defendant. Hakan Yalincak was an NYU student a decade ago when he pled guilty to running a sham hedge fund. Along with a sentence, the court in April 2007 imposed restitution of $4.2 million.

Hakan immediately applied under 18 USC 3664(j)(2) to have money recovered in the fund’s bankruptcy be credited to his restitution. The government paid little attention to the request, noting only that it had no objection to grant of Hakan’s motion. The district court thus approved the request, ultimately applying about $1.55 million collected by the bankruptcy trustee to the amount Hakan was to pay.

bkptcyscam170413What no one appreciated was that the federal bankruptcy system works in a way that would a mere amateur fraudster like Hakan blush. Sure the trustee collected $1.55 million, but by the time all of the bankruptcy vultures – lawyers, trustees, experts – got done picking at it, the victims of the scam got about $300,000. In May 2015, the district court realized that the amount of money actually reaching the victims was about 20% of the credit it had given Hakan, it vacated the 2007 order under F.R.Civ.P. 60(a), which gives a court the power to “correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment.”

Hakan appealed, arguing the 2007 order was final and could not be disturbed.

This week, the 2nd Circuit Court of Appeals agreed with Hakan. The Court said the issue turned on whether an order modifying restitution was a final, appealable order. If so, the district court could not later revisit it. If not, the order remained open to modification by the district court.

The Circuit decided the 2007 order was final:

When the district court granted Yalincak’s motion for credit, it made a conclusive determination as to Yalincak’s entitlement to credit… The order did not dispose of the issue of restitution entirely, given that the credits were not enough to discharge Yalincak’s restitution obligations in full and thereby end the restitution proceedings. Nonetheless, the district court’s resolution of the § 3664(j)(2) motion was a final decision as to Yalincak’s claim regarding the proper accounting for particular funds. If such a decision were not considered final and appeal had to wait until Yalincak had discharged his restitution obligations entirely, it is unclear as a practical matter whether the district court’s grant of the Sec 3664(j(2) motion could ever be challenged.

over170413Yalincak still owed close to $2 million, according to the district court’s calculations. The Circuit admitted that “the district court’s desire to correct an error largely attributable to the government’s somewhat casual consent is understandable. Nevertheless, considerations of finality dictate that by the time the error was noticed, it was beyond the power of the court to correct.”

United States v. Yalincak, Case No. 11-5446 (2nd Cir., April 10, 2010)

– Thomas L. Root

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